Opposition Brief — Ally Financial Inc., Petitioner v. Alberta Haskins, et al.

No. 20-177

In the Supreme Court of the United States

ALLY FINANCIAL, INC.,

Petitioner,

v.

ALBERTA HASKINS, ET AL.,

Respondents.

On Petition for Writ of Certiorari to

the Supreme Court of Missouri

RESPONDENTS’ BRIEF IN OPPOSITION

JESSE B. ROCHMAN

MARTIN L. DAESCH

CRAIG W. RICHARDS

ONDERLAW, LLC

110 East Lockwood Ave.

St. Louis, MO 63119

(314) 227-7695

rochman@onderlaw.com

DEEPAK GUPTA

Counsel of Record

JONATHAN E. TAYLOR

GUPTA WESSLER PLLC

1900 L St., NW, Suite 312

Washington, DC 20036

(202) 888-1741

deepak@guptawessler.com

Counsel for Respondents

November 30, 2020

-iQUESTIONS PRESENTED

1. Does this Court have jurisdiction under 28 U.S.C.

§ 1257(a) to review the Missouri Supreme Court’s decision

summarily declining review of a Missouri Court of

Appeals ruling that rested solely on the state-law ground

that the petitioner’s interlocutory petition was untimely

under state law?

2. Having itself initiated suit in Missouri state court,

and having conceded jurisdiction in that court for the first

three years of litigation, may the petitioner now object to

personal jurisdiction on federal constitutional grounds?

-iiTABLE OF CONTENTS

Questions presented .............................................................. i

Table of authorities ............................................................. iii

Introduction ...........................................................................1

Statement ...............................................................................3

Reasons for denying the writ ...............................................8

I.

This Court lacks jurisdiction over this case. ...............8

II. Even if there were jurisdiction in this Court, this

case would be a hopelessly flawed vehicle because

Ally itself initiated this litigation in Missouri state

court and conceded jurisdiction there. ......................15

III. In any event, review is unwarranted under this

Court’s traditional criteria. .........................................17

IV. There is no legitimate basis to hold this petition. ....19

Conclusion ............................................................................20

-iiiTABLE OF AUTHORITIES

Cases

Adam v. Saenger,

303 U.S. 59 (1938) ..........................................................15

Barron v. Abbott Laboratories, Inc.,

529 S.W.3d 795 (Mo. 2017) ............................................17

Beck v. Washington,

369 U.S. 541 (1962) ..........................................................8

Calder v. Jones,

465 U.S. 783 (1984) ........................................................14

CJG v. Missouri Department of Social Services,

219 S.W.3d 244 (Mo. 2007) ............................................16

Cope v. Parson,

570 S.W.3d 579 (Mo. 2019) ..............................................7

Freeman v. Bee Machine Co.,

319 U.S. 448 (1943) ........................................................16

Home Depot USA, Inc. v. Jackson,

139 S. Ct. 1743 (2019) ....................................................15

John v. Paullin,

231 U.S. 583 (1913) ..........................................................9

Johnson v. California,

541 U.S. 428 (2004) ........................................................13

Lucas Subway Midmo v. Mandatory Poster,

524 S.W.3d 116 (Mo. Ct. App. 2017) ............................13

-ivMadruga v. Superior Court in & for San Diego

County,

251 P.2d 1 (Cal. 1952) ....................................................14

Madruga v. Superior Court,

346 U.S. 556 (1954) ........................................................13

McKinney v. Parsons,

423 U.S. 960 (1975) ........................................................11

Merchants Heat & Light Co. v. J.B. Clow & Sons,

204 U.S. 286 (1907) ........................................................16

Molock v. Whole Foods Market Group,

952 F.3d 293 (D.C. Cir. 2020) .......................................19

Mussat v. IQVIA, Inc.,

953 F.3d 441 (7th Cir. 2020) .........................................19

Osborne v. Subaru of America, Inc.,

243 Cal. Rptr. 815 (Cal. Ct. App. 1988) .......................18

Pearlstone v. Costco Wholesale Corp.,

2019 WL 3997316 (E.D. Mo. 2019) .............................17

State ex rel. Anheuser-Busch, LLC v. Moriarty,

589 S.W.3d 567 (Mo. 2019) ..................................9, 10, 11

State ex rel. K-Mart Corp. v. Holliger,

986 S.W.2d 165 (Mo. 1999) ......................................10, 13

State ex rel. Norfolk & Western Railway Co. v. Dowd,

448 S.W.2d 1 (Mo. 1969) ................................................13

State ex rel. Norfolk Southern Railway Co. v. Dolan,

512 S.W.3d 41 (2017) .....................................................16

-vState ex rel. Peters-Baker v. Round,

561 S.W.3d 380 (Mo. 2018) ..................................7, 11, 12

Stisser v. SP Bancorp, Inc.,

174 A.3d 405 (Md. Ct. Spec. App. 2017) ................17, 18

Street v. New York,

394 U.S. 576 (1969) ..........................................................8

Worley v. Worley,

19 S.W.3d 127 (Mo. 2000) ..............................................17

Statutes and rules

Mo. Rev. Stat. § 512.020.................................................. 5, 10

Mo. Rev. Stat. § 512.020(3) ......................................... 4, 5, 11

Mo. Rev. Stat. § 512.020(5) ................................................. 13

S. Ct. R. 14.1(g)(1) ................................................................. 9

Mo. Rule 52.08(f) .............................................................. 5, 10

Mo. Rule 84.035(a) ....................................................... 5, 6, 10

Mo. Rule 84.035(j) ................................................................ 10

Mo. Rule 84.22(a) ........................................................... 10, 12

Other authorities

Stephen M. Shapiro, et al.,

Supreme Court Practice (11th ed. 2019) ..................8, 9

16B Wright & Miller,

Federal Practice & Procedure § 4023 (3d ed.)...........11

-1INTRODUCTION

This case is about as jurisdictionally and procedurally

flawed as a case that comes to this Court can be. No

federal constitutional issue was timely presented to, or

actually decided by, the Missouri state courts. And it is

apparent that the state courts rested their decisions solely

on independent and adequate state-law procedural

grounds. This Court therefore lacks jurisdiction under 28

U.S.C. § 1257(a), which means that this Court lacks

jurisdiction not only to grant plenary review but also to

hold and GVR, as Ally urges in the alternative. The

petition should be denied.

Even if these serious jurisdictional obstacles could

somehow be overcome, this case would still remain a

hopelessly defective vehicle. Because the petitioner, Ally

Financial, brought this case as a plaintiff in Missouri state

court, consented to jurisdiction in Missouri, and then

defended this litigation in Missouri for years, Ally both

waived and forfeited its right to raise a personaljurisdiction defense—both as a matter of federal

constitutional law and state procedural law.

Ally was not involuntarily brought into Missouri state

court. Although it now seeks to object to the forum, Ally

chose it by suing the respondents there. Even after the

respondents filed class counterclaims, Ally affirmatively

consented to jurisdiction in its answer. It did not raise

personal jurisdiction as a defense; it did not file a motion

to dismiss; and it did not appeal the trial court’s decision

to certify a class. In fact, Ally litigated for three years

without breathing a word about personal jurisdiction.

Then, nine months after its opposition to class certification

and partial summary judgment proved unsuccessful, Ally

switched gears, raising personal jurisdiction as one of

-2several grounds to decertify the class. The trial court

modified the class definitions but declined to decertify.

Pet. 7a–10a.

Ally then sought review of this ruling by filing a

petition in the Missouri Court of Appeals. But Ally filed its

petition too late. Although Missouri law permits

interlocutory appeals of orders with respect to class

certification, a petition for permission to appeal must be

filed within ten days. The Missouri Court of Appeals

explicitly rejected Ally’s petition solely on state-law

procedural grounds: The petition was “due no later than

December 5, 2019,” but it was “filed December 12, 2019”

and was “therefore untimely filed.” Id. 4a.

Ally next filed a petition in the Missouri Supreme

Court. Its lead argument for review was that “[n]o

published Missouri decision has yet addressed the scope

of Rule 52.08(f)”—the state procedural rule governing

interlocutory appeals from class-certification orders—and

whether it governs decertification rulings. Mo. Sup. Ct.

Pet. 10. Ally asked the Missouri Supreme Court to “grant

review to provide the Courts of Appeals with needed

guidance on this recurrent issue” of state procedure

regarding review of “writ petitions challenging

subsequent class orders.” Id. at 10–11. In a one-line order,

the Missouri Supreme Court declined review. Pet. 1a.

On top of all this, the question presented by Ally—

whether the Fourteenth Amendment permits a state

court to exercise specific jurisdiction with respect to the

claims of nonresident absent class members—would not

satisfy this Court’s traditional criteria for certiorari even

if it were squarely presented here. Ally identifies only two

intermediate state-court decisions that it says have

addressed this question, one of which is three decades old.

-3Pet. 13–14. But neither case actually decides it. If the

question recurs as frequently as the petition claims, this

Court should have no trouble identifying a less flawed

vehicle in the future if a split develops.

STATEMENT

In 2008, respondents Alberta Haskins and David

Duncan bought a used 2006 Chevrolet Colorado and

obtained financing for their purchase through petitioner

Ally. For years, Haskins and Duncan made numerous

payments to Ally. After Haskins and Duncan missed some

car payments, Ally repossessed their car and sold it at an

auction.

1. Ally brings this suit in Missouri state court and

the respondents file a counterclaim. Deeming the

proceeds from the auction insufficient, Ally sued Haskins

and Duncan in the Missouri Circuit Court of Jefferson

County in March 2016, seeking an additional $3,953.81. In

March 2017, Haskins and Duncan filed a counterclaim

alleging that the notices Ally sent to consumers before and

after selling their vehicles contradicted the original

consumer-credit contracts and were deficient under the

Uniform Commercial Code. Haskins and Duncan filed the

counterclaim for themselves and all other individuals

whose vehicles Ally had repossessed and sold.

2. Ally defends against the counterclaim without

contesting personal jurisdiction in Missouri. In May

2017, Ally filed an answer to the counterclaim in which it

admitted that the circuit court had jurisdiction. Mo. Sup.

Ct. Appx. 385 ¶ 4. Although Ally asserted many

affirmative defenses directed at the “purported class,”

none alleged that the circuit court lacked personal

jurisdiction. Nor did Ally move to dismiss, either for lack

of jurisdiction or for any other reason.

-4Around the same time, Haskins and Duncan sought

class certification and Ally moved for partial summary

judgment. The following year, the circuit court certified a

nationwide class and a Missouri-only subclass, over Ally’s

opposition, and denied Ally’s motion for partial summary

judgment. Once again, Ally did not contest personal

jurisdiction. And although Missouri law permits

discretionary review of class-certification decisions in the

Court of Appeals, Mo. Rev. Stat. § 512.020(3), Ally did not

seek appellate review of the class-certification ruling.

3. Ally seeks decertification. Nearly nine months

later, in January 2019, Ally moved to decertify the

nationwide class. Pet. 33a. Ally raised a host of arguments

supporting its motion for decertification, most of which it

had already unsuccessfully raised at class certification.

Pet. 36a–37a. Ally also asserted—for the first time after

years of litigation—that the state court lacked personal

jurisdiction over Ally “with regard to claims by nonMissouri members of the nationwide class.” Id. at 37a. Ally

contended that it was appropriate for the circuit court to

consider its request for decertification because the trial

court’s interlocutory class-certification decision was

“inherently tentative” and nonfinal and thus could be

revisited at any point in a case “before a decision on the

merits.” Mo. Sup. Ct. Appx. A1166.

4. After two years of litigation, Ally seeks to retract

its admission of jurisdiction. In March 2019, two years

after it first answered the counterclaims, Ally sought leave

to amend its answer. Among other things, Ally sought to

switch its earlier admission of jurisdiction to a denial and

allege the affirmative defense of lack of personal

jurisdiction as to “non-resident purported class

members.” Mo. Sup. Ct. Appx. A1429. In October 2019,

-5the circuit court permitted Ally to amend its answer. This

ruling was issued well after the parties had briefed and

argued Ally’s decertification motion.

5. The trial court modifies the class definitions and

denies Ally’s motion to decertify the class. Shortly

thereafter, the circuit court rejected Ally’s request to

decertify the class, once again finding that the classcertification requirements under Missouri law were

satisfied. Pet. 7a–8a. To address any potential res judicata

or estoppel problems, the circuit court modified the class

definitions to exclude individuals whose claims might be

foreclosed by final deficiency judgments or by their failure

to disclose their claims in bankruptcy proceedings. Id. at

7a–10a. The circuit court filed a separate ruling on the

statutes of limitations for the claims of individuals in

different states. Id. at 11a–13a. Ally contested both orders

by filing a petition for a writ of prohibition in the Missouri

Court of Appeals for the Eastern District.

6. The Missouri Court of Appeals denies Ally’s

petition for interlocutory review as untimely because it

was filed one week after the ten-day deadline. The

Missouri Court of Appeals denied Ally’s petition. Pet. 3a–

5a. Under Missouri law, only final judgments and certain

types of interlocutory orders may be appealed. Mo. Rev.

Stat. § 512.020. An order granting or denying class

certification may be appealed—provided that the court of

appeals, in its discretion, permits such an appeal and that

the petition is timely filed. Id. § 512.020(3); Mo. Rule

52.08(f). The Court of Appeals construed Ally’s petition as

a petition seeking permission to appeal an order granting

or denying class certification. Pet. 4a. But Ally’s petition

was untimely. Id.; Mo. Rule 52.08(f); id. 84.035(a). Under

Missouri law, a petition for permission to appeal an order

-6granting or denying class certification must be filed within

ten days of the entry of the underlying order. Id. 84.035(a).

Ally had filed its petition one week after this ten-day

deadline. Pet. 4a.

Having concluded that Ally’s petition was “therefore

untimely filed” on state-law procedural grounds, id., the

Court of Appeals did not find it necessary to address any

of Ally’s arguments for decertification, including its

objection to personal jurisdiction. Id.

7. Ally seeks interlocutory review in the Missouri

Supreme Court, contesting the Court of Appeals’ ruling

on Missouri appellate procedure. Undeterred, Ally filed

another petition for a writ of prohibition, this time in the

Missouri Supreme Court.

Ally’s first argument to support review by the state

high court was that “[n]o published Missouri decision has

yet addressed the scope of Rule 52.08(f)”—the state

procedural rule governing interlocutory appeals from

orders granting or denying class certification—and its

application to orders declining to decertify a class. Mo.

Sup. Ct. Pet. 10. Ally also asserted that the Missouri Court

of Appeals had erred in not exercising its discretion to

issue an original remedial writ overturning the circuit

court’s ruling on decertification. Id. Ally asked the

Missouri Supreme Court to “grant review to provide the

Courts of Appeals with needed guidance on this recurrent

issue” regarding the review of “writ petitions challenging

subsequent class orders” in the Missouri Court of

Appeals. Id. at 10–11. After urging the state supreme

court to address the scope of appellate review under Rule

52.08(f), Ally again raised the arguments it had raised in

the trial court when it sought decertification. Id. at 11–17.

-7Haskins and Duncan opposed Ally’s petition,

explaining that Ally had failed to show the “extreme

necessity” required for the “extraordinary remedy” of the

writ of prohibition under Missouri law. State ex rel.

Peters-Baker v. Round, 561 S.W.3d 380, 384 (Mo. 2018).

The respondents argued that Ally was asking the Missouri

Supreme Court to address whether the Court of Appeals

erred in treating Ally’s petition as a petition seeking

permission to appeal under Rule 52.08(f), but doing so by

seeking an original writ directed at the circuit court

rather than the Court of Appeals. Opp. to Mo. Sup. Ct. Pet.

19; Mo. Sup. Ct. Pet. 1. In other words, Ally’s request that

the Missouri Supreme Court address the Court of

Appeals’ ruling on procedural grounds was not proper

before the Missouri Supreme Court. Ally was effectively

seeking an advisory opinion on the application of Missouri

procedural rules in the state court of appeals. Id. (citing

Cope v. Parson, 570 S.W.3d 579, 586 (Mo. 2019) (“This

Court is not authorized to issue advisory opinions.”)).

8. The Missouri Supreme Court summarily denies

review. The state high court denied Ally’s petition without

an opinion. Pet. 1a–2a.

-8REASONS FOR DENYING THE WRIT

I.

This Court lacks jurisdiction over this case.

A. This Court has long made clear that where, as here,

“the highest state court has failed to pass upon a federal

question, it will be assumed that the omission was due to

want of proper presentation in the state courts, unless the

aggrieved party in this Court can affirmatively show the

contrary.” Street v. New York, 394 U.S. 576, 582 (1969).

This is why, when a state’s appellate courts don’t

expressly decide a federal question, “the party invoking

the Supreme Court’s jurisdiction has the high burden of

showing that the federal question was in fact properly

raised, so that the state high court’s failure to deal with it

was not for want of proper presentation.” Stephen M.

Shapiro, et al., Supreme Court Practice 3-53 (11th ed.

2019). “If the petitioner discharges this burden, and if the

federal question was necessary to a determination of the

case and no adequate state ground of decision is apparent,

then and then only can the Supreme Court take

jurisdiction over the case.” Id. at 3-54.

This “high burden” extends to the procedure required

to timely and properly present a federal claim in the state

trial and appellate process. “Failure to follow the appellate

channels provided by the state is usually fatal to the

chances for Supreme Court review” because the petitioner

“will be deemed to have waived the federal issue and there

will be no basis for the assertion of the Court’s jurisdiction.” Id. at 3-58; see Beck v. Washington, 369 U.S. 541,

549–54 (1962). “[I]t rests with each state to prescribe the

jurisdiction of its appellate courts, the mode and time of

invoking that jurisdiction, and the rules of practice to be

applied in its exercise; and the state law and practice in

this regard are no less applicable when Federal rights are

-9in controversy than when the case turns entirely upon

questions of local or general law.” John v. Paullin, 231

U.S. 583, 585 (1913).

The convoluted procedural history of this case is a

stark illustration of the importance of imposing this burden on a petitioner, in the petition for a writ of certiorari

itself, to demonstrate the timely and proper presentation

of a federal issue in the state courts. None of the decisions

below—not the trial court order denying decertification

(Pet. 7a–10a), nor the Missouri Court of Appeals’ order

finding Ally’s petition to be untimely filed (id. at 3a–5a),

nor Missouri Supreme Court’s denial of review (id. at 1a–

2a)—addresses the merits of Ally’s federal personal-jurisdiction defense. The Missouri Court of Appeals denied interlocutory review exclusively because Ally’s petition was

untimely filed as a matter of state procedural law, and

Ally’s lead argument for review in the Missouri Supreme

Court objected to the Court of Appeals’ decision as a matter of Missouri appellate procedure.

Given all this, it was incumbent on Ally to discuss

these points of Missouri law in its petition. See S. Ct. R.

14.1(g)(1) (requiring a detailed showing in any petition

from a state court “that the federal question was timely

and properly raised and that this Court has jurisdiction to

review the judgment”); Shapiro, Supreme Court Practice

3-19 (explaining that the petitioner is “well advised to discuss the applicable state law” “whenever it will aid in determining the finality of the judgment” and that “[t]his

matter should be raised in the petition for certiorari”).

Ally’s failure to do so is reason alone to deny the petition.

B. Under Missouri law, the right to appeal is conferred by statute. State ex rel. Anheuser-Busch, LLC v.

Moriarty, 589 S.W.3d 567, 572 (Mo. 2019). A party may

-10appeal five types of trial-court orders: (1) an “[o]rder

granting a new trial”; (2) an “[o]rder refusing to revoke,

modify, or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction; (3) an

“[o]rder granting or denying class action certification” if

the “court of appeals, in its discretion, permits such an appeal”; (4) “[i]nterlocutory judgments in actions of partition

which determine the rights of the parties”; and (5) “final

judgment in the case or from any special order after final

judgment in the cause.” Mo. Rev. Stat. § 512.020(1)–(5);

Anheuser-Busch, 589 S.W.3d at 572. Parties must wait until final judgment is entered before appealing any other

interlocutory order. Id.

Before a party may appeal a circuit court’s class-certification ruling, it must first file a petition in the state

court of appeals seeking permission to appeal the ruling

and receive such permission. Mo. Rule 52.08(f). The

party’s petition for permission to appeal the trial court’s

class-certification ruling must be filed within ten days of

the entry of the underlying order. Id.; id. 84.035(a). If the

court of appeals denies the petition for permission to appeal the class-certification ruling, further review of the

trial court’s ruling “shall be by petition for original remedial writ” filed in the Missouri Supreme Court. Id.

84.035(j).

Under the Missouri Constitution, the state court of

appeals and state supreme court are not authorized to issue the extraordinary remedy of an original remedial writ

except in narrow circumstances when an appeal or other

remedy is plainly unavailable. State ex rel. K-Mart Corp.

v. Holliger, 986 S.W.2d 165, 169 (Mo. 1999); Mo. Rule

84.22(a). One type of remedial writ is a writ of prohibition,

which, the Missouri Supreme Court has directed, is to be

-11“used with great caution and forbearance and only in cases

of extreme necessity.” State ex rel. Peters-Baker v.

Round, 561 S.W.3d 380, 384 (Mo. 2018). “The essential

function of prohibition is to correct or prevent inferior

courts and agencies from acting without or in excess of

their [authority or] jurisdiction.” Id. Therefore, if a party

“has an adequate remedy by appeal, prohibition will be denied.” Anheuser-Busch, 589 S.W.3d at 572.

C. In light of these principles of Missouri law, it should

be apparent that Ally has not discharged—and cannot discharge—its burden to show jurisdiction in this Court.

Even setting aside Ally’s initial concession of jurisdiction

and failure to seek dismissal based on personal jurisdiction, Ally’s attempt to appeal the decertification order was

defective from the start. Ally filed a petition for a writ of

prohibition in the Court of Appeals, the court reasonably

treated that petition as seeking permission to appeal the

circuit court’s order on the propriety of class certification,

see Mo. Rev. Stat. § 512.020(3), and Ally itself sought review of that procedural issue in the Missouri Supreme

Court, citing the need for “guidance on this recurrent issue” concerning “writ petitions challenging subsequent

class orders.” Mo. Sup. Ct. Pet. 10–11.

Nowhere in its briefing to the Missouri Supreme

Court or to this Court has Ally even suggested that Missouri’s courts have applied its principles of appellate procedure in a way that discriminates against federal constitutional claims in general or Ally’s defense in particular.

And it is “beyond doubt” that “state courts are free to apply nondiscriminatory pleading rules that foreclose issues

not timely raised.” 16B Wright & Miller, Federal Practice

& Procedure § 4023 (3d ed.); see McKinney v. Parsons,

423 U.S. 960, 961 (1975) (explaining that a petition for

-12certiorari was denied because the state-court appeal presenting a federal issue was “dismissed when petitioner’s

appellate brief was untimely filed,” indicating that “the

judgment below rested upon an adequate state ground”).

In passing, Ally refers to the Court of Appeals’ decision as “unprecedented,” claiming that “no Missouri authority establishes that this permissive appeal mechanism

applies to orders denying decertification motions.” Pet. 8.

But, as Ally argued to the Missouri Supreme Court, Missouri’s Rule 52.08(f) mirrors Federal Rule of Civil Procedure 23(f). Under that federal rule, orders like the trial

court’s order here, which modified the class definitions

while declining to decertify the class (see Pet. App. 8a–

10a), would indeed be subject to appeal—provided, of

course, that a petition for permission to appeal was timely

filed. See Matz v. Household Int'l Tax Reduction Inv.

Plan, 687 F.3d 824, 826 (7th Cir. 2012) (holding that “an

order materially altering a previous order granting or

denying class certification is within the scope of Rule 23(f)

even if it doesn’t alter the previous order to the extent of

changing a grant into a denial or a denial into a grant”).

Ally’s problem is simply that it filed its petition too late,

not that the statutory path was plainly inapplicable.

Ally nevertheless suggests that the Missouri courts

should have issued an extraordinary writ of prohibition.

Pet. 8. But this ignores the clear line of Missouri precedent, discussed above, which holds that the state appellate

courts are authorized to issue original remedial writs only

in narrow circumstances, when no other appeal or remedy

is available. State ex rel. Peters-Baker, 561 S.W.3d at 384;

see also Mo. Rule 84.22(a) (“No original remedial writ shall

be issued . . . in any case wherein adequate relief can be

afforded by an appeal or by application for such writ to a

-13lower court.”); Holliger, 986 S.W.2d at 169 (“The general

rule is that, if a court is entitled to exercise discretion in

the matter before it, a writ of prohibition cannot prevent

or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court.”); State ex rel.

Norfolk & W. Ry. Co. v. Dowd, 448 S.W.2d 1, 3–4 (Mo.

1969).

Ally did not even attempt to properly avail itself of the

statutory path to interlocutory review. Nor has it shown

that it is foreclosed from seeking future review of its federal defense. Mo. Rev. Stat. § 512.020(5) (“[A] failure to

appeal from any action or decision of the court before final

judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in this case.”); see, e.g.,

Lucas Subway Midmo v. Mandatory Poster, 524 S.W.3d

116 (Mo. Ct. App. 2017) (reviewing class certification after

summary judgment). To the contrary, Ally contended below that it was appropriate for the circuit court to consider

its decertification request precisely because the trial

court’s interlocutory class-certification decision was “inherently tentative” and could be revisited at any point in a

case “before a decision on the merits.”

D. “A petition for certiorari must demonstrate to this

Court that it has jurisdiction to review the judgment.”

Johnson v. California, 541 U.S. 428, 431 (2004). Apart

from a cursory discussion of the procedural history (at 8–

9), the petition makes only two drive-by attempts to

demonstrate jurisdiction under 28 U.S.C. § 1257(a). Pet. 1,

9 n.7. Neither is sufficient. Ally’s jurisdictional statement

does no more than cite a one-sentence footnote in

Madruga v. Superior Court, 346 U.S. 556, 557 n.1 (1954),

stating that “[t]he State Supreme Court’s judgment

-14finally disposing of the writ of prohibition is a final judgment reviewable here under 28 U.S.C. § 1257.” But

Madruga illustrates precisely what’s lacking here: a decision by the state’s highest court that indisputably disposed

of a federal issue that had been properly preserved and

timely presented in that court as required by state law.

See Madruga v. Super. Ct. in & for San Diego Cty., 251

P.2d 1 (Cal. 1952).

In similarly conclusory fashion, Ally’s petition asserts

that “[t]he Missouri courts have definitively rejected

Ally’s federal due process claim” and that this Court has

“reviewed personal-jurisdiction issues in similar postures.” Pet. 9 n.7. But none of the cases cited involve remotely “similar postures.” Every one of Ally’s cases involved state-court decisions squarely rejecting federal

personal-jurisdiction defenses that were properly and

timely preserved in compliance with state procedural

rules. None involved state-law procedural defects that

foreclosed consideration of the merits below.1

1

Ally cites Calder v. Jones, 465 U.S. 783 (1984), as an example of

a case “where the state supreme court denied review rather than rendering a decision on the merits.” Pet. 9 n.7. But Calder found jurisdiction proper under 28 U.S.C. § 1257 because “the judgment of the California appellate court” squarely addressed the federal due-process

issue and the state’s high court had denied “[a] timely petition” from

that judgment. Id. at 787 & n.8. Here, by contrast, the state appellate

court was unable to reach the merits because of an antecedent statelaw procedural defect.

-15II. Even if there were jurisdiction in this Court, this

case would be a hopelessly flawed vehicle because

Ally itself initiated this litigation in Missouri state

court and conceded jurisdiction there.

Even if the jurisdictional defects could be overcome,

the additional vehicle problems here—stemming from

Ally’s affirmative consent to jurisdiction in Missouri and

its waiver and forfeiture of any personal-jurisdiction

defense over several years of litigation—would likely

prevent this Court from reaching the question presented.

The petition purports to present the question whether

state courts may exercise personal jurisdiction, consistent

with the Fourteenth Amendment, over an “out-of-state

defendant” facing class litigation. Pet. i. But it was Ally

that instituted this action in the Missouri state courts as a

plaintiff and thereby voluntarily submitted itself to the

trial court’s exercise of personal jurisdiction. As this Court

recently recognized in a similar procedural context, “the

filing of counterclaims that included class-action allegations against [a plaintiff] did not create a new ‘civil action’

with a new ‘plaintiff’ and a new ‘defendant.’” Home Depot

USA, Inc. v. Jackson, 139 S. Ct. 1743, 1750 (2019). This

Court has long recognized that a plaintiff that institutes

an action in state court consents to personal jurisdiction

there, including jurisdiction over potential counterclaims

in that same state court. See Adam v. Saenger, 303 U.S.

59, 67–68 (1938) (“There is nothing in the Fourteenth

Amendment to prevent a state from adopting a procedure

by which a judgment in personam may be rendered in a

cross-action against a plaintiff in its courts. . . . It is the

price which the state may exact as the condition of opening

its courts to the plaintiff.”); see also Freeman v. Bee Mach.

Co., 319 U.S. 448, 454 (1943); Merchs. Heat & Light Co. v.

-16J.B. Clow & Sons, 204 U.S. 286, 289–90 (1907). At the very

least, this unique procedural posture presents an antecedent question that may make it impossible to address the

question presented as it is framed. Ally’s petition does not

even identify this preliminary hurdle, let alone seek to

overcome it, and does not even suggest that the lower

courts have considered or diverged over this issue.

Nor is that all. If this Court were to grant certiorari,

it would also have to confront yet another messy set of antecedent legal questions about the effect of Ally’s (1) concession of jurisdiction in its first responsive pleading to the

class counterclaims; (2) waiver by continuing to defend the

litigation without raising a jurisdictional objection for

three years; and (3) belated attempt to retract its concession only after arguing its decertification motion. Each

one presents threshold questions, under both state procedural law and federal constitutional law, that would likely

prevent this Court from reaching the question presented.

For starters, personal jurisdiction is a waivable affirmative defense. State ex rel. Norfolk S. Ry. Co. v. Dolan, 512

S.W.3d 41, 46 (2017) (“[B]ecause personal jurisdiction is

an individual right, a defendant may waive jurisdictional

objections by consenting to personal jurisdiction”); CJG v.

Mo. Dep’t of Soc. Servs., 219 S.W.3d 244, 248–49 (Mo.

2007) (“By participating on the merits of the case during

this lengthy period, the [defendant] voluntarily subjected

himself to the jurisdiction of the court, thereby waiving

any objection based upon lack of personal jurisdiction.”).

And Missouri Rule 55.27(g) requires that personal jurisdiction be raised as an affirmative defense in the initial responsive pleading or a motion filed before the initial responsive pleading. Worley v. Worley, 19 S.W.3d 127, 129

(Mo. 2000); Barron v. Abbott Labs., Inc., 529 S.W.3d 795,

797 n.2 (Mo. 2017). That did not happen here. To the

-17contrary, Ally admitted that jurisdiction was proper and

only sought to retract that admission after the Missouri

courts began to rule against Ally on key issues. But the

Missouri courts hold that an admission of personal jurisdiction is irrevocable and cannot be undone by an amendment to the pleadings. Pearlstone v. Costco Wholesale

Corp., 2019 WL 3997316, at *2 (E.D. Mo. 2019). To grant

Ally’s petition and skip over these threshold problems of

waiver and forfeiture, even though the respondents

properly raised them in the court below, would reward

Ally for seeking a procedurally defective appeal that made

it unnecessary to address these other defects.

III. In any event, review is unwarranted under this

Court’s traditional criteria.

The petition’s jurisdictional and procedural flaws are

many, and they should be dispositive. But even if they did

not exist, this case would still be unsuitable for review under this Court’s traditional criteria for certiorari. Ally

does not even claim that the state supreme courts are divided over the extent to which the Fourteenth Amendment may impose limits on state-court jurisdiction over

absent class members’ claims. In fact, Ally’s petition does

not identify a single decision by any state supreme court

that even addresses that question.

Instead, the petition (at 13–14) cites two intermediate

state-court decisions as evidence that the issue arises frequently in state courts. But neither one of the two cited

cases addresses the question either. The Maryland Court

of Special Appeals, in Stisser v. SP Bancorp, Inc., 174 A.3d

405 (Md. Ct. Spec. App. 2017), found no need to address

the jurisdictional relevance, if any, of absent class members under the Fourteenth Amendment. Instead, the

court found specific personal jurisdiction lacking because

-18the Texas defendant there hadn’t transacted any relevant

business in Maryland or otherwise purposefully availed itself of the privilege of doing business in Maryland. Id. at

427–35. Its only contact with the state was forming a subsidiary there. Given the total lack of relevant Maryland

contacts, the court did not discuss the claims of absent

class members and expressly found that it did “not need

to examine” the impact of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137

S.Ct. 1773 (2017). Id. at 421 n.8.

The only other state-court case cited in the petition is

a three-decades-old decision of the California Court of Appeal for the Third District, Osborne v. Subaru of America,

Inc., 243 Cal. Rptr. 815 (Cal. Ct. App. 1988), which likewise

did not address the question. To the contrary, Osborne

specifically declined to do so because the defendants

hadn’t raised it. Id. at 819 (“Since defendants have not

raised the issue, we shall assume for purposes of argument

that the courts of this state have personal jurisdiction to

adjudicate the claims of nonresident plaintiffs.”). Ally’s

partial quotation, suggesting the opposite, is misleading.

In the absence of any split among the state courts under the Fourteenth Amendment, Ally points to the federal

courts’ decisions concerning the jurisdictional relevance,

under the Fifth Amendment, of the claims of absent class

members in Rule 23 class actions. But the federal circuits

aren’t divided on that question either. Only the Seventh

Circuit—in an opinion by Judge Wood, joined by thenJudge (now Justice) Barrett and Judge Kanne—has

reached the issue. It rejected the suggestion that, in federal court, “each unnamed member of the class must separately establish specific personal jurisdiction over a defendant.” Mussat v. IQVIA, Inc., 953 F.3d 441, 447 (7th

-19Cir. 2020). Relying on this Court’s precedents, the Seventh Circuit explained that “absent class members are not

full parties to the case for many purposes,” including subject-matter jurisdiction and venue. Id. The Seventh Circuit could identify “no reason why personal jurisdiction

should be treated any differently from subject-matter jurisdiction and venue: the named representatives must be

able to demonstrate either general or specific personal jurisdiction, but the unnamed class members are not required to do so.” Id. And the D.C. Circuit, for its part, declined to reach this question as premature where no class

had yet been certified, reasoning that “prior to class certification putative class members are not parties to the action.” Molock v. Whole Foods Mkt. Grp., 952 F.3d 293, 296

(D.C. Cir. 2020). Given the absence of any federal circuit

split, not to mention the lack of jurisdiction in this Court,

there is no basis for the petition’s suggestion (at 4 n.3) that

this petition should be considered in tandem with Mussat

or Molock.

IV. There is no legitimate basis to hold this petition.

As a backstop, Ally asks this Court to hold this petition with a view to a GVR pending its disposition in Ford

Motor Co. v. Montana Eighth Judicial District Court

(No. 19-368) and Ford Motor Co. v. Bandemer (No. 19369). But this Court lacks the power to grant this petition—whether for plenary review or for a GVR—absent

jurisdiction under 28 U.S.C. § 1257(a). Besides, the

Court’s disposition of the Ford cases is unlikely to have

any bearing on this case. The question in the Ford cases

concerns purely individual litigation: “whether a Minnesotan and a Montanan injured in Minnesota and Montana

can access courts in Minnesota and Montana to be heard

on claims against the company that regularly marketed

-20and sold, in Minnesota and Montana, the product that

caused their injuries.” Br. for Respondents at 1, in Nos.

19-368 & 19-369 (U.S. Mar. 30, 2020). No matter how the

Ford cases are decided, they are unlikely to have anything

to say about the messy set of antecedent jurisdictional and

procedural questions identified above, let alone about

whether the Fourteenth Amendment requires unnamed

class members to demonstrate personal jurisdiction in

state court to the same degree as the named class representatives.

CONCLUSION

This petition for a writ of certiorari should be denied.

Respectfully submitted,

DEEPAK GUPTA

Counsel of Record

JONATHAN E. TAYLOR

GUPTA WESSLER PLLC

1900 L St., NW, Suite 312

Washington, DC 20036

(202) 888-1741

deepak@guptawessler.com

JESSE B. ROCHMAN

MARTIN L. DAESCH

CRAIG W. RICHARDS

ONDERLAW, LLC

110 East Lockwood Ave.

St. Louis, MO 63119

(314) 227-7695

rochman@onderlaw.com

Counsel for Respondents

November 30, 2020