We were reading the appallingly bad personal jurisdiction (and other things, but those aren’t what we’re interested in today) decision in Hammons v. Ethicon, Inc., ___ A.3d ___, 2018 WL 3030754 (Pa. Super. June 19, 2018).  While many of the jurisdictional issues in Hammons are factually limited to the particular defendant and the particular product, one holding made us drop what we were doing and turn to research.

That question is very simple – who has the burden of proof where the issue is whether a plaintiff’s assertion of personal jurisdiction violates Due Process.

Hammons held:

A defendant making a challenge to the court’s personal jurisdiction has, as the moving party, the burden of supporting its objection to jurisdiction.

2018 WL 3030754, at *6 (quoting De Lage Landen Services, Inc. v. Urban Partnership, LLC, 903 A.2d 586, 589 (Pa. Super. 2006)) (emphasis added).

This holding − that the defendant, not the plaintiff who asserted jurisdiction in the first place, has the burden of proof when a constitutional challenge to personal jurisdiction is raised – is virtually unprecedented and contrary to practically all the cases we have seen addressing this issue. It also seems intuitively wrong, since analogous issues, such as subject matter jurisdiction, standing, and the admissibility of evidence, impose the ultimate burden of proof on the party advocating jurisdiction or admissibility of evidence, even though the opposing party usually makes the motion to have the issue decided.

Moreover, in Hammons we think that the burden of proof question matters.  Much of Hammons revolves around the same third-party contractor issue that we recently discussed in this post about another adverse jurisdictional decision from the same Philadelphia mass tort.  Although Hammons tries harder to disguise the lack of causal relationship between what the third party did (knitting the mesh together) and any design or manufacturing claim actually asserted by the plaintiff (see 2018 WL 3030754, at *9 (defendant “worked together” with the third-party “in Pennsylvania to design, test and manufacture the” product), the problem we identified in the prior post still exists – Hammons never states how this third-party’s activities contributed to the particular defect/injuries alleged by this plaintiff.  None of the “specifications” for the knitting originated with the Pennsylvania entity, but rather with the defendant. Id. (“knitted . . ., and tested samples for, compliance with [defendant’s] specifications”).

Ultimately, we don’t think that the Superior Court’s proposition – that any allegation of “design” or “manufacturing” defect allows jurisdiction to rest on any arguably in-state “design” or “manufacturing”-related activities where those activities don’t have anything to do with what allegedly injured the plaintiff – flies under Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”).

But there’s a second set of allegations in Hammons, that the defendant “relied heavily on an Allentown, Pennsylvania gynecologist . . . for the development, study, and marketing of [the product].”  Id.

Those facts, whether significant or wildly overblown, were nonetheless “trial evidence,” id. − meaning that plaintiff did not assert them in opposition to the defendant’s previous jurisdictional motion.  The court’s excuse for considering them was:

We may affirm on any ground.  Thus, we need not confine our reasons for affirming to evidence adduced during proceedings on [defendant’s] preliminary objections to jurisdiction.

Id. at 9 n.6 (citation and quotation marks omitted).

That’s fine if the defendant bears the burden of proof, and is thus responsible for ensuring a complete jurisdictional record.  But if the plaintiff bore the burden of proof in Hammons, then the plaintiff had the obligation to complete the jurisdictional record in a timely fashion, and it would not be proper for an appellate court to decide the jurisdictional issue on facts that the trial court did not have before it because the plaintiff failed to present them.  Reliance on such after-the-fact facts is called “sandbagging,” and is generally frowned upon. E.g., Com. v. Johnson, 456 A.2d 988, 996 (Pa. Super. 1983).  We can’t evaluate whether the extent of this Pennsylvania consulting was enough for this litigation tourist to remain in a Pennsylvania court under BMS, but we do believe that it was procedurally improper for an appellate court to consider it if the party being benefited bore (and thus failed to meet) the burden of proof on personal jurisdiction.

All this being said, we can’t say with 100% certainty that the Hammons burden of proof ruling is erroneous – because neither the United States Supreme Court nor the Pennsylvania Supreme Court appears to have decided the burden-of-proof question in the specific context of personal jurisdiction.  No controlling decision of a higher court was ignored – at least that we could find.

In researching this question, we (of course) looked at to United States Supreme Court and found very little.  In Burger King Corp. v. Rudzewicz, the Court phrased the inquiry in the passive voice, “[o]nce it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered.”  471 U.S. 462, 476 (1985).  So did Asahi Metal Industries Co. v. Superior Court, 480 U.S. 102, 114, (1987) (“[w]hen minimum contacts have been established”).  Such language neatly avoids the burden of proof question, and presumably arises because the Supreme Court is usually dealing with undisputed factual records.

We found even less precedent in the Pennsylvania Supreme Court – not even passive voice holdings.

However, review of Superior Court precedents shows that the Hammons position was not even the majority rule.  A majority of Pennsylvania Superior Court decisions hold something like this:

Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it.

Schiavone v. Aveta, 41 A.3d 861, 865 (Pa. Super. 2012) (quoting Gaboury v. Gaboury, 988 A.2d 672, 675 (Pa. Super. 2009) (emphasis added), aff’d, 91 A.3d 1235 (Pa. 2014) (per curiam).  See N.T. v. F.F., 118 A.3d 1130, 1134 (Pa. Super. 2015) (also quoting Gaboury); Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012) (“Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it.”); Mendel v. Williams, 53 A.3d 810, 816 (Pa. Super. 2012) (quoting Schiavone); Taylor v. Fedra International, Ltd., 828 A.2d 378, 381 (Pa. Super. 2003) (“Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it.”); Barr v. Barr, 749 A.2d 992, 994 (Pa. Super. 2000) (same); Grimes v. Wetzler, 749 A.2d 535, 540 (Pa. Super. 2000) (“Once the [defendants] supported their jurisdictional objection, the burden shifted to [plaintiff] to prove that there is statutory and constitutional support for the trial court’s exercise of jurisdiction.”); General Motors Acceptance Corp. v. Keller, 737 A.2d 279, 281 (Pa. Super. 1999) (”Once the movant has supported its jurisdictional objection, however, the burden shifts to the party asserting jurisdiction to prove that there is statutory and constitutional support for the court’s exercise of in personam jurisdiction.”); McCall v. Formu-3 International, Inc., 650 A.2d 903, 904 (Pa. Super. 1994) (“once the moving party has supported his objection to jurisdiction, the burden of proof shifts to the party asserting jurisdiction”); Rivello v. New Jersey Automobile Full Insurance Underwriting Ass’n, 615 A.2d 342, 343 (Pa. Super. 1994) (“once the defendant properly raises the issue of jurisdiction, the plaintiff has the burden of proving that jurisdiction is proper”); Derman v. Wilair Services, Inc., 590 A.2d 317, 319 (Pa. Super. 1991) (same); (“When, as here, a defendant properly raises an objection on the ground of a lack of in personam jurisdiction, the plaintiff has the burden of proving that the exercise of jurisdiction is permissible.”); Babich v. Karsnak, 528 A.2d 649, 654 (Pa. Super. 1987) (same); Bergere v. Bergere, 527 A.2d 171, 173 (Pa. Super. 1987) (“When a defendant raises lack of personal jurisdiction, it becomes the plaintiff’s burden to prove that the exercise of jurisdiction is permissible.”).  There are older cases, but you get the point….

We tried following the line of cases Hammons quoted to see how a contrary position originated.  That wasn’t hard.  We started with the De Lage case, which Hammons quoted.  The burden of proof didn’t really matter in De Lage, since that case affirmed dismissal for lack of personal jurisdiction.  903 A.2d at 592.  On the burden issue, De Lage in turn quoted (id. at 589-90) two cases: King v. Detroit Tool Co., 682 A.2d 313, 314 (Pa. Super. 1996) (for the proposition, “A defendant making a challenge to the court’s personal jurisdiction has, as the moving party, the burden of supporting its objection to jurisdiction”), and Gall v. Hammer, 617 A.2d 23, 24 (Pa. Super. 1992).  King cited Scoggins v. Scoggins, 555 A.2d 1314, 1317 (Pa. Super. 1989).

Taking Gall first, it’s not any different in content from the string cite we have above – only in organization and placement.  In the body of the opinion, Gall did indeed state, “When a defendant challenges the court’s assertion of personal jurisdiction, that defendant bears the burden of supporting such objections to jurisdiction by presenting evidence.”  617 A.2d at 24.  That may involve a burden of production, but not the ultimate burden of proof.  The “then what” proposition in Gall was dropped to a footnote.  “The burden of proof only shifts to the plaintiff after the defendant has presented affidavits or other evidence in support of its preliminary objections challenging jurisdiction.”  Id. at 24 n.2.  So Gall is not authority for holding that a defendant, alone, bears the burden of proof when personal jurisdiction is at issue.  Nor is Scroggins.  In that case, the court simply separated “if X” from “then Y.”  Here is the complete discussion in Scroggins, with the two propositions highlighted:

When a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections.  As the moving party, the defendant, has the burden of supporting its objections to the court’s jurisdiction.

Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff’s evidence.  The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations.  Only when the moving party has properly raised the jurisdictional issue does the burden of proving jurisdiction fall upon the party asserting it.  Where an essential factual issue arises from the pleadings as to the scope of a defendant’s activities within the Commonwealth, the plaintiff has the right to depose defendant as to his activities within the Commonwealth.

555 A.2d at 1317-18 (multiple citations omitted) (emphasis added as described above).

Thus the Hammons holding that the defendant has the burden of proof − period – on personal jurisdiction is unwarranted even by Superior Court precedent.  It confuses the initial burden of production of evidence with the ultimate burden of proof.  Hammons, along with the case it quotes, misstates the burden of proof by omitting the holding of numerous prior Superior Court panels that, once the defendant puts on some evidence to support its jurisdictional position (which we’re sure was done), then the burden switches to the plaintiff to establish jurisdiction as “the party asserting it.”  That makes practical sense as well.  If plaintiffs didn’t bear the burden of proof, why would they need jurisdictional discovery?

The majority Pennsylvania rule, that the plaintiff bears the ultimate burden of proof on personal jurisdiction, is also the federal rule.  While the United States Supreme Court hasn’t decided the issue, the Courts of Appeals have done so many times, and appear to be unanimous in imposing the ultimate burden of proving personal jurisdiction on the plaintiff asserting it.  Here are a few of the many decisions (the search pulled up 881 cases):

To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must plead sufficient facts to support a reasonable inference that the defendant can be subjected to jurisdiction within the state.  But where, as here, the parties submit affidavits to bolster their positions on the motion, and the district court relies on the evidence, the motion is in substance one for summary judgment.  The plaintiff bears the burden of proof on the issue of personal jurisdiction, and must establish jurisdiction by a preponderance of the evidence at trial or when the court holds an evidentiary hearing.

Creative Calling Solutions, Inc. v. LF Beauty Ltd., 799 F.3d 975, 979 (8th Cir. 2015) (citations and quotation marks omitted).

It was [plaintiff’s] burden to convince the district court that it had jurisdiction over the persons of the defendants.  That is, [plaintiff] had to satisfy a threshold requirement, the prima facie establishment of jurisdiction.  The plaintiff bears the burden of establishing a prima facie case of jurisdiction over the movant, non-resident defendant.

PVC Windoors, Inc. v. Babbitbay Beach Construction, N.V., 598 F.3d 802, 810 (11th Cir. 2010) (citations and quotation marks omitted).

The plaintiff bears the burden of establishing” personal jurisdiction, and though he need only make a prima facie case at the Rule 12(b)(2) stage, his burden escalates to preponderance of the evidence by the end of trial.

In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 888 F.3d 753, 778 (5th Cir. 2018) (citations and quotation marks omitted).

See also, e.g., John Crane, Inc. v. Shein Law Center, Ltd., 891 F.3d 692, 695 (7th Cir. 2018) (“When challenged, the plaintiff has the burden of proving personal jurisdiction.”) (citation omitted); Scottsdale Capital Advisors Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir. 2018) (“a plaintiff must proffer evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction and may not rely on unsupported allegations”) (citation and quotation marks omitted); Friedman v. Bloomberg L.P., 884 F.3d 83, 90 (2d Cir. 2017) (“The plaintiff bears the burden of demonstrating that the court has personal jurisdiction over each defendant.”) (citation omitted); Anwar v. Dow Chemical Co., 876 F.3d 841, 847 (6th Cir. 2017) (“Plaintiffs have the burden of establishing that a district court can exercise jurisdiction over the defendant”); Morrill v. Scott Financial Corp., 873 F.3d 1136, 1141 (9th Cir. 2017) (“When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate.”); Polar Electro Oy v. Suunto Oy, 829 F.3d 1343, 1348 (Fed. Cir. 2016) (“The plaintiff bears the burden of establishing minimum contacts”); Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016) (“a plaintiff must establish facts supporting jurisdiction over the defendant by a preponderance of the evidence”) (citation omitted); Niemi v. Lasshofer, 770 F.3d 1331, 1347 (10th Cir. 2014) (“the plaintiff generally must establish, by a preponderance of the evidence, that personal jurisdiction exists”) (citation and quotation marks omitted); Williams v. Romarm, SA, 756 F.3d 777, 785 (D.C. Cir. 2014) (”[plaintiffs] have the burden of establishing a factual basis for the court’s exercise of personal jurisdiction over [defendant]”); Control Screening LLC v. Technological Application & Production Co., 687 F.3d 163, 167 (3d Cir. 2012) (“The plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction.”) (citation and quotation marks omitted).  That’s a clean sweep.  Every federal court of appeals imposes the ultimate burden of proof on plaintiffs in personal jurisdiction matters.

Finally, because of what personal jurisdiction represents, we think that the burden of proof should be on the plaintiff as a matter of policy.  Personal jurisdiction is an essential element of due process of law.  “Because ‘[a] state court’s assertion of jurisdiction exposes defendants to the State’s coercive power,’ it is ‘subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause.”  BMS, 137 S. Ct. at 1779 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918 (2011)).  “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations.” Burger King, 471 U.S. at 471-72.  The constitution “operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants.”  Kulko v. Superior Court, 436 U.S. 84, 91 (1978).  Restrictions on personal jurisdiction “are more than a guarantee of immunity from inconvenient or distant litigation.  They are a consequence of territorial limitations on the power of the respective States.”  Hanson v. Denckla, 357 U.S. 235, 251 (1958).  Given the interests at stake, even if there were no precedent, we think that Due Process considerations mandate that plaintiffs demonstrate that their assertion of personal jurisdiction over defendants is constitutional.

In any event, the peculiar burden of proof ruling in Hammons seems to us to cry out for additional review, which should begin with the en banc Superior Court being given the opportunity to sort out the discrepancies in that court’s panel decisions on this issue.