January 30, 2018 Practice Points

You Can’t Have All That!: Jurisdictional Discovery after Bristol-Myers Squibb

By Richard Tabura

The U.S. Supreme Court recently held in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (BMS) that a state court does not have personal jurisdiction over an out-of-state defendant to hear claims brought by an out-of-state plaintiff absent a connection between the forum and the specific claims at issue. In the mass torts context, BMS strengthens an out-of-state defendant’s ability to knock out a majority of claims (non-resident plaintiffs’ claims) from the mass action. Whether by way of a motion to dismiss, motion to quash, or whatever your jurisdiction calls a motion challenging personal jurisdiction, plaintiffs will seek jurisdictional discovery to oppose the motion challenging personal jurisdiction. As much as defense counsel may argue that no jurisdictional discovery is needed to decide a motion challenging personal jurisdiction in light of BMS, a court will likely give plaintiffs the chance to conduct jurisdictional discovery if they can show there is a colorable basis for the existence of jurisdiction.

Limiting the scope and timing of any jurisdictional discovery is crucial for out-of-state defendants relying on BMS. Plaintiffs’ requests may be numerous and overbroad, seeking information concerning any tangential contact with the forum despite having no relation to the claims at issue. Further, plaintiffs’ requests could be a thinly veiled effort to build their evidence to support the merits of their case. For example, in In re Atrium Medical Corp. C-Qur Mesh Products Liability Litigations, __ F.Supp.3d __, 2017 WL 5514193 (D.N.H. Nov. 14, 2017), plaintiffs were granted leave to conduct jurisdictional discovery in response to a motion to dismiss based on lack of personal jurisdiction. The plaintiffs proposed over 100 document requests and the depositions of 30(b)(6) designees, the CFO, and the defendant’s founder/chairman. The court found that the plaintiffs’ requests were over broad and forced them to serve narrower discovery addressing only jurisdictional issues. For out-of-state defendants relying on BMS, similarly limiting the scope of jurisdictional discovery to their contacts with the forum as they relate to the specific claims at issue is critical. Additionally, if a Court does grant leave to conduct jurisdictional discovery, an out-of-state defendant should consider advocating for a short timeframe for conducting jurisdictional discovery and immediately deciding the motion challenging personal jurisdiction. Doing so may save their clients money and may help their chances of eliminating out-of-state plaintiffs’ claims.

Richard Tabura is an associate with Greenberg Traurig, LLP, in Los Angeles, California.


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