A federal court in Utah ruled the other day that it had no personal jurisdiction over a corporate parent, even though the plaintiffs alleged that the defendant subsidiary was the “alter ego” of its owner. We read the order with great interest for a couple of reasons. First, one of our first assignments out of law school was to respond to discovery and write motions for an insurance company’s parent—a holding company that held considerable assets, but did not underwrite insurance policies. We have learned over the years that some companies don’t care so much about corporate parents being sued, and others care a great deal. Our insurance company client was in the “cared a great deal” bucket, leaving us to parse endlessly how the “company” differed from the “group,” how the company did all the business and had all the employees, and how they all scrupulously observed every corporate formality. It usually worked, because it was all true. The holding company was a holding company, and the insurance company had the wherewithal to answer for his own debts. Ever since this experience, we have held a persistent (perverse?) interest in alter ego, agency, and other ploys to “pierce the corporate veil.”
The second reason the recent District of Utah case caught our interest is because one of the underappreciated aspects of the Supreme Court’s reset of general personal jurisdiction in Bauman is how the Court discarded so-called “agency jurisdiction.” That was where a court could impute a subsidiary’s forum contacts to the corporate parent by applying a relaxed “agency” standard. That form of jurisdiction does not exist anymore. See Daimler AG v. Bauman, 571 U.S. 117, 134-36 (2014). The Supreme Court closed the loop when it recalibrated specific personal jurisdiction in BMS and held that specific jurisdiction cannot be based on another defendant’s forum contacts. See Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1783-84 (2017).
So where did that leave the plaintiff in the recent Utah case who was trying to sue a medical device company and its corporate parent? Because there was no general jurisdiction over the non-resident parent, the plaintiff had to prove specific jurisdiction through the rigorous and difficult-to-prove “alter ego” standard. The case is Jorgensen v. Wright Medical Group, Inc., No. 2:18-cv-366, 2018 WL 6250606 (D. Utah. Nov. 29, 2018), and the plaintiff sued the medical device manufacturer (the “company”) and its holding company (the “parent”) alleging injuries resulting from treatment with the device.
The district court rejected jurisdiction over the parent, and there are three interesting points.
First, the district court considered evidence, even though it was ruling on a motion to dismiss. In an attempt to establish sufficient forum contacts, the plaintiffs alleged that both the company and the parent “sold, distributed, and marketed” the device within Utah. Id. at *2. But the parent submitted uncontroverted affidavits explaining that it did no business in Utah and had no place or business or property there. Id. The plaintiff submitted press releases and SEC filings where the parent spoke of its medical device business generally, but the district court found that consolidated statements are a “common business practice” that did not undermine the specific facts in the sworn affidavits. Id. at *3. The lesson is that unproven allegations will not carry the jurisdictional day. Even on a motion to dismiss, courts can and should consider evidence.
Second, the alter ego standard is difficult to meet. In attempting to attribute the company’s forum contacts to the parent, the plaintiff relied on the same press releases and SEC filings as before, but they were not sufficient. Rather, “(1) there must be such unity of interest and ownership that the separate personalities of the corporation and the individual [shareholder] no longer exist . . . and (2) the observance of the corporate form would sanction a fraud, promote injustice, or an inequitably result would follow.” Id at *4. This standard is based on Utah law, but it is similar to standards we have seen in other states. Here, the parent’s affidavits again held sway: They attested that the parent “maintains separate accounting and banking records from the accounting and banking records of [the company].” Id. The plaintiff neither rebutted this evidence, nor alleged that any fraud or injustice would result from observance of the corporate form. Id.
Third, in what might be the most useful part of the order, the district court denied “jurisdictional discovery.” Id. at 5. The following standard applied: “‘The district court does not abuse its discretion by denying jurisdictional discovery where there is a very low probability that the lack of discovery’ would affect the outcome of the case.” Id. The plaintiff had to suggest specific discovery that would lead to a different result, and he came up with just one set of documents that purportedly would show the parent’s “direct involvement” in the medical device at issue. But another plaintiff had offered those same documents to establish liability against the parent in another case, and the parent was dismissed, making is “highly unlikely” that the documents would make a difference here. Id.
All is not lost for this plaintiff. He still has jurisdiction over the medical device company, although we know nothing from this order about the arguable merits of his claims. He will not, however, be allowed to reach into the parent company’s pockets.