"I am from Missouri. You have got to show me." That quote attributed to Congressman Willard Duncan Vandiver in 1899 is reputedly the source of Missouri's unofficial nickname, the "Show Me" state. Or maybe it isn't. Whatever the slogan's origin, a federal judge in Missouri recently said "show me" when 83 plaintiffs from 30 different states claimed personal jurisdiction in Missouri over a New Jersey-based talcum powder manufacturer. These litigation tourists predictably could not meet the challenge, resulting in their claims being dismissed and the federal court retaining diversity jurisdiction over those who remained.
The case is Jinright v. Johnson & Johnson, Inc., No. 4:17-cv-01849, 2017 WL 3731317 (E.D. Mo. Aug. 30, 2017). Sure, this is not a drug or medical device case, but the plaintiffs' business model is the same as what we often see in the drug and medical device space—dozens of out-of-state plaintiffs joining in a lawsuit with one or two resident plaintiffs and one or two plaintiffs who defeat diversity, all as a ploy to forum shop their cases into a state court that their attorneys perceive as friendly. The Jinright plaintiffs followed the playbook to a tee: Eighty-three plaintiffs in one civil action with two Missourians and at least one plaintiff each from California and New Jersey—the latter to defeat diversity of citizenship with the California and New Jersey defendants.
If this configuration looks familiar to you, it should. Almost identical facts were before the U.S. Supreme Court in BMS v. Superior Court, where the Supreme Court held that a plaintiff cannot establish specific personal jurisdiction over his or her claims by reference to transactions involving other parties. See Bristol Myers Squibb v. Superior Court, 137 S. Ct. 1773, 1781-84 (2017). With those ground rules, the outcome in Missouri was correct. The defendants removed the 83-plaintiff petition to federal court and moved to dismiss the non-Missouri plaintiffs, who had no basis for asserting personal jurisdiction over the defendants in Missouri. The plaintiffs moved to remand, citing the non-diverse parties.
The defendants won, and there are two interesting aspects of the court's order to highlight.
First, the district court decided personal jurisdiction first, before it determined subject matter jurisdiction. Jinright, 2017 WL 3731317, at *2. The plaintiffs argued, with some support, that the district court should decide whether it had subject matter jurisdiction as a threshold matter. But the district court took a more pragmatic approach after BMS, observing that "there are circumstances in which a court may first address personal jurisdiction, such as where personal jurisdiction is straightforward while subject matter jurisdiction is 'difficult, novel, or complex.'" Id. (emphasis added).
This nugget is extremely useful in today's climate, where the Supreme Court in BMS and before that in Bauman has made the rules governing personal jurisdiction as clear and straightforward as they have been in decades. As the district judge in Jinright found, "The personal jurisdiction question is straightforward. Remanding this case for lack of complete diversity only to have the case removed again later once the non-Missouri plaintiffs are dismissed would be a waste of judicial resources." Jinright, at *2 (emphasis added). Perhaps the district judge saw our post from about six weeks ago presciently titled " Post-BMS Personal Jurisdiction is Pretty Straightforward." Regardless, when faced with complaints like these, we have three options to invoke federal jurisdiction: (1) Move to dismiss the plaintiffs who can't establish personal jurisdiction, then remove; (2) remove and ask the district court to sever and remand the non-diverse claims, or (3) remove and simultaneously move to dismiss the non-diverse plaintiffs. These options won't always work, depending on the case and the applicable deadlines. The Jinright order squarely recommends option 3. The Supreme Court's opinion in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999), similarly supports adjudicating personal jurisdiction before establishing subject matter jurisdiction where the former is "a straightforward . . . issue presenting no complex question of state law."
Second, the district court rejected the plaintiffs' argument that they needed discovery into personal jurisdiction. They claimed evidence that another defendant had talc-related dealings with a Missouri-based company, which "processed, bottled and labeled" product in Missouri. Id. at *4. The district court, however, ruled that even if it considered these facts (which the plaintiffs did not allege in their petition), they did not establish specific personal jurisdiction over the talcum powder manufacturer because "it did not establish a connection between Plaintiffs' injuries, the product which caused the harm in this matter, and Defendants' contacts in Missouri." Id. at *4. This was similar to BMS, where the plaintiffs relied on the drug manufacturer defendant's contacts with a California-based distributor. It was not sufficient to establish specific personal jurisdiction in BMS, and it was not sufficient in Missouri either. Id. As such, no further discovery was needed or allowed because "[a]ll they have shown is a connection with a third party in Missouri. This is not enough to create specific jurisdiction for nonresidents' claims." Id. at *5.
This last part is significant because these plaintiffs made a go at identifying talcum-related Missouri contacts, but the district court did not bite. We predicted that plaintiffs would try to stretch tenuous forum contacts into specific jurisdiction when confronted with motions to dismiss, but it does not always work. It did not work here. We also note that this is the second order that we know of rejecting "jurisdictional discovery" as futile. There are likely others, but if two cases can be a trend, we like this trend. It should lead to less talc-related litigation tourism in Missouri, but time will tell.
The result is that the claims of 79 plaintiffs with no articulable connection to Missouri were dismissed. The remaining claims are staying in federal court and will be transferred to multidistrict litigation in New Jersey. Perhaps their dismissed cohorts will re-file there and join them, or maybe they will not re-file at all. Either way, when this Missouri-based judge asked these litigation tourists if they knew their way to the door, they likely said "show me."
This article is presented for informational purposes only and is not intended to constitute legal advice.
