Surely, you’ve heard the definition of insanity as repeating the same conduct but expecting different results. You might also have heard that Einstein said it, though that might not be right – not even relatively right. 

It is definitely not right for plaintiffs to keep filing meritless actions even after they keep receiving benchslaps.  Maybe insane is too strong a word, but it is certainly unjust, tedious, and expensive.  In other words, filing patently meritless actions is wholly counter to Fed. R. Civ. P. 1. (If you cannot recite that rule by heart, consider committing it to memory. We can hardly think of an argument in federal court that did not implicate Rule 1.) 

You have probably also heard of the rule of three. Maybe it started when Julius Caesar began his account of the Gallic Wars by observing that all of Gaul is divided into three parts. Our college foreign policy professor, the great Stanley Hoffman, always divided his lectures into three parts. Rule 1, referenced above, provides that the federal rules should serve the three goals of making litigation just, speedy, and inexpensive. There were three wise men, three deathly hallows, three blind mice, and Three Dog Night.  And, of course, three strikes and you’re out.

Last year, we featured a federal decision that rejected an attempt by the notorious MSP Recovery to cut discovery corners by employing a Florida-peculiar “bill of discovery.”  (We do not like that procedure one bit.  But we practice in Pennsylvania, which has similar crazy litigation short-cuts, so we are throwing no stones.) 

MSP stands for Medicare Secondary Payer, and its business, at least to our highly biased defense-hack eyes, looks very much like litigation leechery.  MSP likes to invoke the Florida pure bill of discovery (Fla. Stat. section 26.01(2)) in aid of its actions under the Medicare Secondary Payer Act, 42 U.S.C. Section 1395y, et seq. That S might stand for secondary, but here it should be a T for tertiary – as in three time loser. We have that federal MSP loss, a state court loss, then this case, which we are enjoying today. In the prior federal case that we blogged about, the N.D. Georgia federal court held that there was no personal jurisdiction over the device manufacturer. Florida requires a closer nexus between the state and the activity in question than is required by the federal Due Process clause. Such nexus was absent in that case.  Adios. (Our blogpost on that case recited other potential bases for dismissal. It also recounted the sad saga surrounding litigation strategies of MSP recovery entities.) 

Did that federal decision put an end to MSP’s efforts to fish for discovery from foreign corporations? Of course not.  Did MSP’s earlier, similar loss in Florida state court against another device manufacturer dissuade it?  Nope. By the way, each state court case involved how many tries by MSP?  That’s right: three.

Today’s case, Coloplast Corp. v. MSP Recovery Claims, Series, LLC, 2025 WL 2055769 (Fla. 3d Dist. Ct. App. July 23, 2025), is short, weird, and satisfying. Of course.  It is, after all, from Florida. (Okay, so we are growing a couple, or maybe three, pebbles.) MSP’s filing was the equivalent of Florida Man heaving an alligator through a fast food drive-thru window. Three times. 

The trial court refused to dismiss, but on appeal the Third (!!!) Florida district court of appeals reversed in a short-but-published decision.  

As we said, this is an instance of repeated repetition. The Florida Third DCA in “an almost identical case” had ruled that MSP had not established personal jurisdiction over a foreign company – the selfsame defendant in this case – and there was no basis to distinguish the cases. 

MSP tried to distinguish based on including more verbiage, but more was not better.  MSP asserted personal jurisdiction “under the business venture prong.” Nope. This decision finds no basis for personal jurisdiction over the non-Florida manufacturer under the Florida long arm statute.  After three complaints, enough was enough and out MSP went again.  A non-resident manufacturer is not subject to a bill of discovery simply because a Florida plaintiff files one.  There must be a “substantive connection” to the foreign device manufacturer’s activities in the Sunshine State, and there was no such connection. 

Accordingly, the appellate court reversed the trial court and concluded as follows: “Because MSP is not able to amend the complaint to show the claim’s required causal connection to Florida, we remand the case and instruct the trial court to dismiss with prejudice.”  

Will this decision stop the insanity? Somehow, we doubt it. As the appellate court pointed out, MSP was on notice of its pleading deficiency. 

Next time – strike four – the meritless assertion of personal jurisdiction should be greeted with sanctions.