In golf, a mulligan is when a golfer hits a second shot if they’re not satisfied with their first shot.  We’ve used the term before to refer to the second chances given to plaintiffs to re-plead their claims.  So, we decided to look up the origin of the term and found conflicting stories.  The most widely accepted story is that the term comes from David Mulligan, a Canadian golfer in the 1920s who hit a long drive off the tee that wasn’t straight, so he re-teed and hit again. His partners thought the shot deserved a better name and called it a “mulligan”.  Another theory is that the term comes from John A. “Buddy” Mulligan, a locker room attendant at Essex Fells Country Club in New Jersey in the 1930s. When he was called away from his duties to play golf, he was given an extra chance at the first tee. A third, and seemingly less likely, theory is that the term comes from “Swat Mulligan”, a fictional baseball player in the New York Evening World in the 1910s. No matter its origins, we favor it more on the golf course and less in litigation.  Nevertheless, when it comes to pleading deficiencies, plaintiffs are often given a mulligan.  In Walden v. The Cooper Companies, Inc., Case No. 24-cv-00903-JST (N.D. Cal. Sep. 9, 2024), plaintiffs were given a second attempt to tee up joinder and personal jurisdiction via an alter ego theory.

Defendants are the manufacturer of a medical product used for in vitro fertilization and its parent company.  The lawsuit alleges strict liability and negligence causes of action following the recall of three lots of product that plaintiffs allege contained insufficient magnesium required for proper embryo development.  Id. at 1-2. Each defendant moved to dismiss the case. 

The parent company alleged that it was not properly joined because the allegations of the complaint were directed to defendants collectively and did not specify the actions of each defendant or allege any particular actions taken by the parent at all.  Id. at 6.  While this type of “group pleading” is not always fatal to a complaint, it is when it does not give defendants “fair notice” of the claims against them.  Id. The only allegation specific to the parent company is that it “[o]perates through [its subsidiary].”  Id. at 7.  That single, conclusory allegation is not enough.  The parent company is not on “notice as to what it allegedly did or how its conduct—as opposed to the conduct of [the manufacturing entity]—gives rise to liability.”  Id.  Plaintiffs argued that because the companies have a parent-subsidiary relationship, the court should infer that the allegations are directed to both companies.  The court declined that invitation but decided that “group pleading” was a curable deficiency and gave plaintiffs a chance to amend their complaint.

The subsidiary company challenged whether the court had personal jurisdiction over it. Plaintiffs conceded that they could not meet the requirements for specific jurisdiction.  That is, they could not demonstrate that the lawsuit arises out of or relates to the defendant’s contacts with the forum, California.  Id. at 4, 10.  Instead, plaintiffs argued that the court had general jurisdiction over the subsidiary.  The “paradigm basis” for general jurisdiction is a corporation’s place of business or place of incorporation.  Neither of those places is California for this defendant. Id. at 8.  Plaintiffs argued this was an exceptional case because defendant had employees in California, offices in California, a mailing address in California, an agent for service of process in California, and does “substantial” business in California.  Id. at 8-9. 

First, most of those allegations were not pled in plaintiffs’ complaint and therefore, could not be considered by the court on a motion to dismiss.  Id. at 9.  Second, the fact that the defendant does business in or operates in California, among many other states, is not an “exceptional” circumstance. If that was enough, “exceptional,” would simply mean “national,” which the Supreme Court has rejected.

But the story doesn’t end there.  Plaintiffs requested permission to conduct jurisdictional discovery, which they argue will establish general jurisdiction under an alter ego theory and specific jurisdiction under an agency theory.  While its current allegations regarding the relationship between the two defendants are not enough to establish either type of jurisdiction, the court found plaintiffs made a “colorable” showing which is enough to grant them jurisdictional discovery.  Id. at 11.   Plaintiffs have approximately three months to conduct said discovery and report back to the court.  At which point, the issues will be teed up again.  And whether the origin lies with David, or Buddy, or Swat—a mulligan is one free swing only and we hope the same is true for complaints.