February 04, 2021 Articles

Jurisdictional Discovery for Defendants

Jurisdictional discovery provides a means to demand, at the beginning of litigation, evidence that the plaintiff used the defendant’s product and did so in a jurisdictionally relevant forum.

By James M. Beck

Ordinarily, in mass tort litigation, plaintiffs employ jurisdictional discovery as a weapon to oppose defendants’ Rule 12(b)(2) dismissal motions. Experience shows that most requests for jurisdictional discovery are, at best, 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 there situations when defendants can use jurisdictional discovery from plaintiffs to their advantage? The answer is yes. Indeed, jurisdictional discovery of plaintiffs in mass tort litigation may prove a useful tool to redress one of the worst features of aggregated litigation, particularly multidistrict litigation (MDL)—the inability to screen out meritless claims in a timely fashion at the outset of the litigation.

First, defendants are equally entitled as plaintiffs to jurisdictional discovery. The right to discovery belongs to “parties.” Fed. R. Civ. P. 26(b)(1). “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 Emp. Feeder LLC v. McKellar, 2020 WL 3206555, at *2 (D. Del. June 15, 2020) (granting jurisdictional discovery to defendants). 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.” 8 Wright & Miller, Federal Practice and Procedure Civil § 2008.3, Relevancy to the Subject Matter, Discovery About Jurisdictional Issues, n.4 (3d ed.). No procedural basis exists to deny defendants their equal right to take jurisdictional discovery of plaintiffs concerning disputed jurisdictional facts.

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).

Where “evidence may exist to refute Plaintiff’s jurisdictional allegations, and th[e] Defendant may not be in possession of such evidence,” it is “appropriate to permit Defendant the opportunity to discover and present such evidence.” Young v. Bridgestone Americas Tire Operations, LLC, 2021 WL 50478, at *2 (D. Utah Jan. 6, 2021). In Young, the defendant sought to discover the ownership history of the product at issue after it left the defendant’s hands. Id. at *1. The defendant did not have this information, and the defendant successfully argued that “its general distribution process and limited business activities in [the forum state] strongly suggest that the subject tire was not sold” there and, thus, that the “[p]laintiff’s claims do not arise out of Defendant’s [forum] activities.” Id. This showing was enough to entitle the defendant to jurisdictional discovery.

Similarly, 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 circumstances.” 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 the plaintiff’s business travel) to determine where the plaintiff was located when the relevant contract negotiations occurred. Id. at *1 n.1.

Now back to mass torts. The Supreme Court in Bristol-Myers Squibb Co. v. Superior Court (BMS), 137 S. Ct. 1773 (2017), identified some of the jurisdictional 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, or (3) did not in fact use the defendant’s product.

Given that one of the principal complaints that virtually everyone representing defendants has about MDLs is the lack of early vetting of plaintiffs for (among other things) these precise problems, personal jurisdiction should provide defendants a means of obtaining this information in a timely fashion. Not only do mass tort plaintiffs lacking these in-state contacts fail to state a claim; they also lack a basis for personal jurisdiction. This jurisdictional aspect of BMS has been pursued successfully by defendants in innovator liability cases: In re Zantac (Ranitidine) Products Liability Litigation, 2020 WL 7866660, at *10–11 (S.D. Fla. Dec. 31, 2020); Henry v. Angelini Pharma, Inc., 2020 WL 1532174, at *4 (E.D. Cal. Mar. 31, 2020); and Stirling v. Novartis Pharmaceutical Corp., 2020 WL 4259035, at *3 (Idaho Dist. Ct. July 13, 2020). But the jurisdictional prerequisites in mass torts are not limited to any particular claim. A mass tort plaintiff—particularly a nonresident of the forum—must establish the case-specific forum contacts identified in BMS.

Take the Zantac MDL, for example. In Zantac, certain overseas defendants were denied jurisdictional discovery—but only because the plaintiffs’ complaints “d[id] not contain any well-pled allegations” of any such purchases at all of their products. In re Zantac (Ranitidine) Prods. Liab. Litig., 2020 WL 6907056, at *9 (S.D. Fla. Nov. 24, 2020). If the plaintiffs in Zantac had pleaded enough to create an initial factual dispute to which jurisdictional discovery was relevant, the MDL court indicated that such discovery would have been permitted, (1) stating that the defendants sought jurisdictional discovery in good faith and (2) “reject[ing] 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 should allow defendants to use challenges to nonresident plaintiffs’ ability to obtain personal jurisdiction as a vehicle for obtaining early dismissals. Whether applied to jurisdiction or to the merits of a plaintiff’s case, MDL plaintiffs who cannot produce evidence of their use of a defendant’s product at the outset of the litigation should be dismissed immediately. Thus, jurisdictional discovery provides a means to demand, at the beginning of litigation, evidence that the plaintiff used the defendant’s product and did so in a jurisdictionally relevant forum.


James M. Beck is a senior life sciences policy analyst at Reed Smith LLP in Philadelphia, Pennsylvania.

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