Litigation tourist plaintiffs have been taking it on the chin lately when it comes to personal jurisdiction. Here’s another example. Durham v. LG Chem, Ltd., 2022 WL 274498 (11th Cir. Jan. 31, 2022), is not a drug and device case and not precedential (note: the Fed. Appx. reporter is no more), but is nonetheless notable because it considers and rejects the other side’s latest (but hardly greatest) jurisdictional arguments.
Durham involved an allegedly exploding lithium battery that had been used in an e-cigarette. Plaintiffs have been attempting to make a mass tort out of this fact pattern, but generally failing – at least against battery makers – due to the batteries having been included in the e-cigarettes by unrelated third parties, such as vape shops. In Durham, litigation tourist plaintiffs, from Missouri, Ohio, Arizona, and Pennsylvania, brought suit in Georgia where the overseas defendant’s American subsidiary was located. Id. at *1.
After a couple of other plaintiffs lost jurisdictional motions, these plaintiffs wanted either to hightail it to their “home districts” or else rely on a “new” jurisdictional theory – that that the district court’s jurisdiction over foreign parties was broader than that of a Georgia court” because it could consider the overseas defendant’s “contacts with the United States as a whole.” Id. The district court not only refused any transfer, since the plaintiffs had chosen their forum and were now stuck with it, but also flatly rejected these plaintiffs’ novel nationwide contacts jurisdictional theory.
That’s why we’re discussing it. Somebody on the other side is putting in time and effort to invent these novel theories for mass tort litigation, so we expect our side will see this one again. Be ready.
Plaintiffs appealed to the Eleventh Circuit – and lost again.
Only the novel jurisdictional theory was on appeal, since plaintiffs abandoned their transfer request. Plaintiffs’ argument was based on a supposed difference between the “Due Process guarantee” of the Fifth Amendment, governing federal law, versus the Fourteenth Amendment governing the states. Id. We blogged about that, here several years ago, finding overwhelming precedent supporting the proposition that, as long as plaintiffs were asserting state-law causes of action under diversity jurisdiction, the relevant Due Process clause was found in the Fourteenth Amendment.
Nonetheless, with their other personal jurisdictional arguments failing right and left, plaintiffs keep trying. Durham suggests that they may (at least against overseas defendants) start pushing some made-up difference between the two amendments’ identical Due Process language.
Durham began its analysis with Fed. R. Civ. P. 4, because “[p]ersonal jurisdiction starts with service of process.” 2022 WL 274498, at *2 (citation omitted). Under Rule 4 (as we had discussed in our prior post) only federal causes of action where Congress has expressly authorized nationwide service of process involve a nationwide contacts analysis. “Under Rule 4(k)(2), service of process can establish personal jurisdiction over a defendant that ‘is not subject to jurisdiction in any state,’ but only ‘[f]or a claim that arises under federal law.’” Id. Thus, the overseas defendant here was not served under any federal statute, but rather under the Hague Convention. Plaintiffs’ Hague detour failed.
But the Convention does not authorize nationwide service − it is merely a mechanism for serving parties outside the United States in partnering countries. Accordingly, the Hague Convention does not give a district court personal jurisdiction over a party notwithstanding its lack of contacts with the forum state.
Id. (citations omitted).
Since personal jurisdiction in diversity cases like the Durham plaintiffs brought is based on state law, so is personal jurisdiction analysis. “When personal jurisdiction is premised on the forum state’s long-arm statute, the relevant due process concerns emanate from the Fourteenth Amendment, and courts consider the party’s contacts with the forum state.” Id. (citations omitted). That the Supreme Court had purportedly dropped “hints” based on its reluctance to resolve Fifth Amendment issues in Fourteenth Amendment Due process cases, id. at *3, didn’t mean a thing.
These unresolved questions are irrelevant to this appeal. It is true that the Supreme Court has been careful not to conflate the due process requirements of the Fifth and Fourteenth Amendments. But, here, there is no question that the relevant amendment is the Fourteenth and the relevant forum is Georgia. Thus, we have no occasion to consider whether an analysis under the Fifth Amendment would lead to a different result.
The way we – and the court in Durham – look at things, unless and until Congress enacts a statute providing for nationwide service of process in federal diversity litigation (plaintiffs should not hold their breath), there’s no reason to entertain any Fifth Amendment-based personal jurisdiction arguments in any case where federal subject matter jurisdiction is based on diversity of citizenship. Thus, to the extent that future tort plaintiffs grasp at the straw of Fifth Amendment personal jurisdiction, that argument doesn’t get to first base, since its fundamental premise is fatally flawed. Applicability of the Fifth Amendment does not come about simply by being in a “federal court,” but rather by the assertion of some “federal” basis for the plaintiff’s causes of action.
And even then, as we also discussed in our prior post, there is no reason to believe that the constitution itself (as opposed to a federal statute expanding the scope service of process) treats personal jurisdiction any differently – since the Supreme Court’s Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), decision, heavily relied on a Fifth Amendment case, Walden v. Fiore, 571 U.S. 277 (2014), that involved a plaintiff asserting a purely federal cause of action, that being a Bivens constitutional tort.
So plaintiffs’ novel Fifth Amendment personal jurisdiction argument fails for both procedural (not applicable to diversity cases) and substantive (no difference between Fifth and Fourteenth amendments). Make a note of it.