In our personal jurisdiction posts, we’ve generally taken a dim view of plaintiffs who attempt to oppose Rule 12(b)(2) dismissal motions with requests for jurisdictional discovery. Both our experience and our perspective leads us to view such requests as overwhelmingly likely to be fishing expeditions, designed more to delay and to increase the expense of jurisdictional motions than with any expectation of actually finding relevant jurisdictional facts.
But what about defendants? Are they allowed to seek jurisdictional discovery from plaintiffs? Remember what Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), had to say about facts that mass tort plaintiffs’ needed to have in order to assert personal jurisdiction:
The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims. As noted, the nonresidents were not prescribed [the product] in California, did not purchase [the product] in California, did not ingest [the product] in California, and were not injured by [the product] in California. . . .
Id. at at 1781. Thus, mass tort plaintiffs are unlikely to be able to establish personal jurisdiction over a defendant if they: (1) were not prescribed the defendant’s product; (2) did not purchase the defendant’s product; and/or (3) did not in fact use the defendant’s product. BMS was concerned about allegations of non-forum use, but no use at all would be equally lacking in jurisdictional contacts.
That could help solve another problem.
Since one of the principal complaints the we (and virtually everyone representing defendants) have about MDLs is the lack of early vetting of plaintiffs for (among other things) not having the precise things that BMS listed, maybe personal jurisdiction can, at least sometimes, provide us a means of obtaining this information in a more timely fashion. Not only do plaintiffs lacking these in-state contacts fail to state a claim, they also lack a basis for personal jurisdiction. We’ve seen the jurisdictional aspect of BMS pursued in innovator liability cases, Henry v. Angelini Pharma, Inc., 2020 WL 1532174, at *4 (E.D. Cal. March 31, 2020); Stirling v. Novartis Pharmaceutical Corp., 2020 WL 4259035, at *3 (Idaho Dist. July 13, 2020), but it is just as true as a general matter.
“Where issues arise as to jurisdiction or venue, discovery is available to ascertain facts bearing on such issues.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978). “[W]hen facts that go to the merits and the court’s jurisdiction are intertwined and genuinely in dispute, parties have a qualified right to jurisdictional discovery.” ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d 1337, 1341 (11th Cir. 2017). “Jurisdictional discovery is not necessarily a one-way street.” Mithril GP Employee Feeder LLC v. McKellar, 2020 WL 3206555, at *2 (D. Del. June 15, 2020) (granting jurisdictional discovery to the defendant orcs and ents).
Thus, in One Bank & Trust NA v. Galea, 2011 WL 13141643 (E.D. Ark. Sept. 27, 2011), the plaintiff’s claim to personal jurisdiction rested on a forum selection clause that the defendant claimed was fraudulently induced, and the court held that the defendant’s request for “jurisdictional discovery on these types of issues seems appropriate under these circumstance.” Id. at *2. In Vai, Inc. v. Miller Energy Resources, Inc., 2012 WL 12897099, at *2 (E.D. Pa. Feb. 24, 2012), the defendant received jurisdictional discovery (of plaintiff’s business travel) to determine where plaintiff was when the relevant contract negotiations occurred. Id. at *1 n.1. Similarly, BMS has now recognized that the personal jurisdiction claims of litigation tourist product liability plaintiffs turns on where they obtained or used the product at issue.
Thus, no procedural basis exists to deny defendants their equal right to take jurisdictional discovery of mass tort plaintiffs concerning the jurisdictional facts recently identified in BMS. See Fed. R. Civ. P. 26(b)(1) (right to discovery belongs to “parties”).
To be sure, arguments challenging personal jurisdiction typically result in discovery where a plaintiff takes limited jurisdictional discovery of the defendant, to see whether the defendant’s activities fall within the long-arm statute, and, if so, whether the defendant has sufficient minimum contacts. But Plaintiffs here have not called attention to any case law or other authority which would prevent limited discovery of a plaintiff . . . adopting the “what’s-sauce-for-the-goose-is-sauce-for-the-gander” maxim.
Vorbe v. Morisseau, 2014 WL 12637924, at *4 (S.D. Fla. Aug. 27, 2014) (emphasis original). Just as plaintiffs are allowed to dispute a defendant’s jurisdictional assertions, defendants have the same right where they “provide some specific indication regarding what facts discovery would produce to affect the jurisdictional analysis.” Wright & Miller, 8 Fed. Prac. & Proc. Civ. §2008.3, “Relevancy to the Subject Matter, Discovery About Jurisdictional Issues,” n.4 (3d ed.).
Indeed, in recent decision from the Zantac MDL suggests that a BMS-based motion for jurisdictional discovery against plaintiffs may well have succeeded. In Zantac, as we discussed, certain overseas defendants were denied jurisdictional discovery only because the lack of any purchasers of their products was not in dispute – plaintiffs complaints “d[id] not contain any well-pled allegations that” such purchasers existed. In re Zantac (Ranitidine) Products Liability Litigation, 2020 WL 6907056, at *9 (S.D. Fla. Nov. 24, 2020). If there had actually been a factual dispute to which discovery was relevant, the defense motion for jurisdictional discovery in all probability would have been granted, since the Zantac court held: (1) defendants sought jurisdictional discovery in good faith; and (2) “reject[ed] Plaintiffs’ argument that the request . . . is improper merits discovery and/or is subsumed within [other] motions.” Id. at *8. Indeed, in Zantac, the MDL “[p]laintiffs conceded . . . that, in appropriate circumstances, the Court has discretion to authorize a defendant to take jurisdictional discovery in support of a 12(b)(2) motion.” Id.
Thus, another consequence of the BMS decision appears to be to provide a partial vehicle for obtaining early dismissals of, at least, litigation tourist MDL plaintiffs where they cannot produce evidence of use of a defendant’s product at the outset of the litigation. We say “at least” because the innovator liability cases establish that even a plaintiff suing in his/her home state cannot establish personal jurisdiction without evidence of using the defendant’s product.