Plausibly pleading personal jurisdiction

Temple Law Review

Volumn 82, Issue 3, 2009, Pages 627-656

  Ressler, Jayne S ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79251551400     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (261)

1. 550 U.S. 544 (2007).
2. Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 MINN. L. REV. 1851 (2008).
3. Posting of Scott Dodson to PrawfsBlawg, The Mystery of Twombly Continues, http://prawfsblawg.blogs.com/prawfsblawg/2008/02/the-mystery-of.html (Feb. 5, 2008, 23:40).
4. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 431 (2008).
5. See Ettie Ward, The After-Shocks of Twombly: Will We "Notice" Pleading Changes?, 82 ST. JOHN'S L. REV. 893, 893-94 (2008) (noting difficulties circuit courts have experienced applying pleading rules after Twombly).
6. See, e.g., Michael C. Dorf, The Supreme Court Wreaks Havoc in the Lower Federal Courts-Again, FINDLAW, Aug. 13, 2007, http://writ.news.findlaw.com/dorf/ 20070813.html (describing confusion created by Twombly and noting that "[t]he hundreds of lower court opinions citing Twombly take a variety of positions on the meaning of the case"). However, the Supreme Court may have recently resolved some of the confusion regarding Twombly in its decision in Ashcroft v. Iqbal. 129 S. Ct. 1937 (2009). In Iqbal, the Court stated, "Our decision in Twombly expounded the pleading standard for 'all civil actions,' and it applies to antitrust and discrimination suits alike." 129 S. Ct. at 1953 (internal citation omitted).
7. Sherman Antitrust Act, 15 U.S.C. §§ 1-7 (2006).
8. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007).
9. Id. at 562-63.
10. 355 U.S. 41 (1957), abrogated by Twombly, 550 U.S. 544.
11. Conley, 355 U.S. at 45-46; see also Iqbal, 129 S. Ct. at 1944 (acknowledging Twombly Court's dismissal of Conley's "no set of facts" pleading requirement). For a comprehensive discussion of Conley, see Kendall W. Hannon, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811, 1816-20 (2008). Just two weeks after Twombly, however, the Supreme Court issued Erickson v. Pardus, 127 S. Ct. 2197 (2007), a per curiam reversal of a dismissal on pleading grounds by the Tenth Circuit. Citing Twombly, the Court held that "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the ⋯ claim is and the grounds upon which it rests.'" Erickson, 127 S. Ct. at 2200 (quoting Twombly, 550 U.S. at 555). Thus, to the extent Twombly found that Conley "ha[d] earned its retirement," Twombly, 550 U.S. at 563, the Court's opinion in Erickson clarified that the Court was retiring only Conley's "no set of facts" language, which had been, in the Court's view, extended well beyond its intended meaning over time. Clearly, the Court did not wholly reject notice pleading.
12. See, e.g., Keith Bradley, Pleading Standards Should Not Change After Bell Atlantic v. Twombly, 102 NW. U. L. REV. COLLOQUY 117, 118 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/31/ (discussing pleadings in antitrust litigation context).
13. Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135, 140 (2007), http://www.virginialawreview.org/inbrief/ 2007/07/09/dodson.pdf (noting that "notice-plus pleading" is required for all suits).
14. Hannon, supra note 11, at 1835 (presenting statistical analysis of 12(b)(6) motions in lower courts, pre- and post- Twombly).
15. Max Huffman, The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims, 10 U. PA. J. BUS. & EMP. L. 627, 657 (2008) (noting impact of Twombly pleading standard both inside and outside antitrust context).
16. Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243 F.R.D. 604, 605 (2006) (describing variations in courts' understanding of pleading requirements).
17. Randal C. Picker, Twombly, Leegin, and the Reshaping of Antitrust, 2007 SUP. CT. REV. 161, 172-77 (2008) (detailing post-Twombly changes in antitrust litigation); Spencer
18. supra note 4, at 483 (predicting impact that plausibility pleading requirement will have on valid claims); Thomas
19. supra note 2, at 1879 (explaining incongruence between new standards for motions to dismiss, common law principles, and Seventh Amendment).
20. Brian Thomas Fitzsimons, Note, The Injustice of Notice & Heightened Pleading Standards for Antitrust Conspiracy Claims: It Is Time to Balance the Scale for Plaintiffs, Defendants, and Society, 39 RUTGERS L.J. 199, 224 (2007) (arguing heightened pleading standards favor defendants).
21. Amanda Sue Nichols, Note, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Pleading Standard of Bell Atlantic v. Twombly?, 76 FORDHAM L. REV. 2177, 2221 (2008) (arguing for application of plausibility pleading standard for Alien Tort Statute litigation).
22. Saritha Komatireddy Tice, Recent Development, A "Plausible" Explanation of Pleading Standards: Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), 31 HARV. J.L. & PUB. POL'Y 827, 838 (2008) (explaining potential uncertainty among lower courts in applying "plausibility" standard).
23. Ides, supra note 11, at 606.
24. see also id. (noting that, consistent with Twombly's deficiencies, "within three months of the decision, 808 lower federal courts [sic] opinions had cited the case, often taking divergent views of what it meant").
25. Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. & POL'Y 61, 64 (2007).
26. See supra note 6 for an introduction to Iqbal. For a further discussion of Iqbal, see Adam Liptak, 9/11 Case Could Bring Broad Shift on Civil Suits, N.Y. TIMES, July 21, 2009, at A10. Appellate lawyer Thomas C. Goldstein stated that "Iqbal [was] the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts." Id. (internal quotation marks omitted). Liptak paraphrased corporate defense lawyer Mark Herrmann as saying that "the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs." Id. Civil procedure scholar Stephen B. Burbank described Iqbal as "a blank check for federal judges to get rid of cases they disfavor." Id. (internal quotation marks omitted).
27. Cf. Hannon, supra note 11, at 1811-12 (discussing fundamental role that pleadings play in operation of federal judiciary and effects of court's pleading standards on framing issues, controlling access to discovery, and shaping settlement proceedings).
28. See infra Part III for a discussion of the problems that arise in applying personal jurisdiction law.
29. See also Lee Scott Taylor, Note, Registration Statutes, Personal Jurisdiction, and the Problem of Predictability, 103 COLUM. L. REV. 1163, 1163-64 (2003) (discussing uncertainties surrounding law of personal jurisdiction).
30. See, e.g., Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451-53 (3d Cir. 2003) (noting changes in courts' guidelines for personal jurisdiction given rise of Internet).
31. Wendy Collins Perdue, Personal Jurisdiction and the Beetle in the Box, 32 B.C. L. REV. 529, 530 (1991).
32. In an arena employing similar verbiage, but not implicating personal jurisdiction directly, discussions regarding a possible distinction between "arising out of" and "related to" frequently arise in the context of the interpretation of arbitration agreements. For example, clauses including all claims or controversies "arising out of" the subject contract have been considered by some courts to be narrow in scope, i.e., the scope of the arbitration clause is limited to those claims having some direct relation to the terms and provisions of the contract.
33. See Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1464 (9th Cir. 1983) (noting that "arising hereunder" covers narrower field of arbitration disputes than "arising out of or relating to"); In re Kinoshita & Co., 287 F.2d 951, 953 (2d Cir. 1961) (noting parties' deviation from standard "arising out of or relating to" language limited applicability of arbitration clause). Both Mediterranean and Kinoshita hold that claims alleging breach of a separate and unrelated contract, breach of fiduciary duty, and quantum meruit, none of which rely on the interpretation or performance of the contract containing the arbitration clause, are not subject to arbitration as disputes "arising out of" the contract. These cases reason that where an arbitration clause refers solely to disputes or controversies "under" or "arising out of" the contract, arbitration is restricted to claims "relating to the interpretation of the contract and matters of performance." Mediterranean, 708 F.2d at 1464 (quoting Kinoshita, 287 F.2d at 953). On the other hand, the phrase "arising out of or relating to" the contract has been interpreted broadly to encompass virtually all disputes between the contracting parties, including related tort claims.
34. See Southland Corp. v. Keating, 465 U.S. 1, 15 n.7 (1984) (involving claims for fraud, misrepresentation, breach of contract, breach of fiduciary duty, and violation of state franchise investment law); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 406 (1967) (holding that contractual language "[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof" is "easily broad enough to encompass" claim for fraud in inducement of contract (internal quotation marks omitted)). The addition of the phrase "relating to" to the phrases "arising out of" or "under" has been construed as broadening the scope of the arbitration provision. See Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93 (4th Cir. 1996) (characterizing phrase "arising out of or relating to" as broad arbitration clause "capable of an expansive reach"). According to David Zaring's posting on The Conglomerate, a blog devoted to "Business, Law, Economics & Society," a similar controversy confounded the British legal system until recently. Posting of David Zaring to The Conglomerate, News for Arbitration Fans, http://www.theconglomerate.org/2007/10/news-for-arbitr. html (Oct. 18, 2007). Zaring writes that the "'arising under' language in contracts has been more narrowly tailored in the UK than 'arising out of or related to' language-which meant there was more scope to go straight to court if the 'arising under' language appeared in the dispute settlement part of the contract." Id. Lord Hoffman resolved that controversy, however, holding: [T]he construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction. Premium Nafta Prods. Ltd. v. Fili Shipping Co. [2007] UKHL 40 (appeal taken from Eng.), available at http://www.publications.parliament.uk/pa/ ld200607/ldjudgmt/jd071017/ship-1.htm.
35. See infra Part III.C for a discussion of the proximate cause test.
36. See infra notes 171-78 and accompanying text for a discussion of the colorable claim requirement and its comportment with Twombly.
37. See infra Part II for a discussion of Twombly's effect on personal jurisdiction standards and Part III for a discussion of the range of analyses courts employ for judging the sufficiency of pleadings.
38. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (holding that complaint must cross "line from conceivable to plausible" in order to survive motion to dismiss); id. at 574-75 (Stevens, J., dissenting) (arguing that majority's holding signaled return to difficult-to-administer "'spectrum'" of facts and conclusions that Federal Rules of Civil Procedure had sought to eliminate (quoting Jack B. Weinstein & Daniel H. Distler, Comments on Procedural Reform: Drafting Pleading Rules, 57 COLUM. L. REV. 518, 520-21 (1957))).
39. The citations that the Court used to show the high cost of litigation are focused almost exclusively on discovery costs. See Twombly, 550 U.S. at 559 (noting "extensive scope of discovery in antitrust cases" (citing MANUAL FOR COMPLEX LITIGATION (FOURTH) § 30 (2004))); id. (summarizing finding that use of discovery "accounts for as much as 90 percent of litigation costs" (citing Memorandum from Paul V. Niemeyer, Chair, Advisory Committee on Civil Rules, to Honorable Anthony J. Scirica, Chair, Comm. on Rules of Practice and Procedure (May 11, 1999), reprinted in 192 F.R.D. 354, 357 (2000))). The Court also noted the "unusually high cost of discovery in antitrust cases." Id. at 558 (citing William H. Wagener, Note, Modeling the Effect of One-Way Fee Shifting on Discovery Abuse in Private Antitrust Litigation, 78 N.Y.U. L. REV. 1887, 1898-99 (2003)).
40. see also Wagener, supra, at 1898-99 (arguing that antitrust plaintiff has tactical advantage in determining scope of discovery). The Court expressly cited discovery abuse and the alleged inability of judges to control discovery as reasons to insist on heightened pleading when the costs of discovery are high. Twombly, 550 U.S. at 559 (citing Frank H. Easterbrook, Discovery as Abuse, 69 B.U. L. REV. 635, 638 (1989)). However, Professor Cavanagh has criticized this aspect of the opinion for relying too heavily on the Easterbrook article, stating that the assertions are "contrary to fact" and do not account for recent innovations in the tools that judges have at their disposal to control discovery. Edward D. Cavanagh, Twombly, the Federal Rules of Civil Procedure and the Courts, 82 ST. JOHN'S L. REV. 877, 879, 882-89 (2008).
41. Twombly, 550 U.S. at 559.
42. See also infra notes 138-60 and accompanying text for a discussion of the intersection of pleading rules and discovery costs.
43. Twombly, 550 U.S. at 558. Twombly also reminds us that costly discovery is not a recent development: twenty-five years ago, in 1984, the Court of Appeals for the Seventh Circuit observed that "the costs of modern federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984).
44. Delta Air Lines, Inc. v. August, 450 U.S. 346, 363 n.1 (1981) (Powell, J., concurring) (noting danger that costs of litigation and discovery can outweigh interest in litigating meritorious claims or defenses).
45. see also Marc Galanter, A World Without Trials?, 2006 J. DISP. RESOL. 7, 31 (explaining that high costs of litigation are one reason fewer trials occur); Ben Walther, Note, Employment Agreements and Tender Offers: Reforming the Problematic Treatment of Severance Plans Under Rule 14d-10, 102 COLUM. L. REV. 774, 783 (2002) (explaining great economic costs of 14d-10 litigation, especially when meritless suits reach discovery stage).
46. Twombly, 550 U.S. at 559 (citing Easterbrook
47. supra note 24, at 638 (observing judges' inability to prevent "impositional discovery" because parties control legal claims)).
48. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (quoting Twombly, 550 U.S. at 559) (internal quotation marks omitted); Paul Stancil, Balancing the Pleading Equation, 61 BAYLOR L. REV. 90, 97 (2009) (noting that judges try to maintain efficiency in litigation process, often by simply insisting that parties resolve pretrial disputes). Moreover, discovery abuses generally fall into two categories: (1) excessive discovery requests used to impose excessive costs (usually utilized by plaintiffs), and (2) resistance of legitimate discovery requests to avoid disclosure or buy time (usually utilized by defendants). PEGGY E. BRUGGMAN, REDUCING THE COSTS OF CIVIL LITIGATION: DISCOVERY REFORM 1 (1995), available at http://w3.uchastings.edu/plri/fal95tex/ discov.html.
49. see also Judith A. McKenna & Elizabeth C. Wiggins, Empirical Research on Civil Discovery, 39 B.C. L. REV. 785, 799-804 (1998) (discussing various types of discovery abuses).
50. Twombly, 550 U.S. at 555 (citing 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216, at 235-36 (3d ed. 2004)).
51. Id. at 556.
52. Id. at 557 (citing DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999)).
53. Id. at 557-58 (citing Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
54. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
55. See, e.g., Trippe S. Fried, Maintaining the Home Court Advantage: Forum Shopping and the Small Business Client, 6 TRANSACTIONS: TENN. J. BUS. L. 419, 431 (2005) (explaining that successful personal jurisdiction defenses raise plaintiffs' costs); Walter W. Heiser, A "Minimum Interest" Approach to Personal Jurisdiction, 35 WAKE FOREST L. REV. 915, 932 (2000) (noting that U.S. Supreme Court has identified travel costs, attorneys' costs, and participation in discovery as burdens in personal jurisdiction context); Emil Petrossian, In Pursuit of the Perfect Forum: Transnational Forum Shopping in the United States and England, 40 LOY. L.A. L. REV. 1257, 1309 (2007) (noting litigation advantages of engaging in personal jurisdiction discovery for defendants with greater financial resources attempting to dry out weaker plaintiffs' resources).
56. See, e.g., I.B. Diffusion L.P. v. Lands' End, Inc., No. 94 C 3331, 1995 U.S. Dist. LEXIS 5813, at
57. 2 (N.D. Ill. Apr. 28, 1995) (observing personal jurisdiction requirement and rule that federal court has personal jurisdiction over defendant only if state court would have personal jurisdiction).
58. Crane v. Battelle, 127 F.R.D. 174, 176 (S.D. Cal. 1989) (observing basic due process requirement of personal jurisdiction for court to hear suit against defendant).
59. 550 U.S. 544 (2007). See infra Part III for a discussion of the tests courts apply along the conceivability to plausibility spectrum for personal jurisdiction.
60. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn.8-9 (1984) (distinguishing specific and general jurisdiction); Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004) (identifying differences between specific and general jurisdiction); Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1170 (5th Cir. 1985) (observing importance of distinguishing between specific and general jurisdiction).
61. Helicopteros, 466 U.S. at 420 (Brennan, J., dissenting); id. at 415-16 (majority opinion); see also Dever, 380 F.3d at 1073 (observing that general jurisdiction permits jurisdiction over defendant who has pervasive contacts with forum state, even if dispute did not arise from contacts); ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002) (same); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 619 (1st Cir. 2001) (same).
62. Helicopteros, 466 U.S. at 414 n.9 ("When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the State has been said to be exercising 'general jurisdiction' over the defendant."); Dever, 380 F.3d at 1073 ("Under the theory of general jurisdiction, a court may hear a lawsuit against a defendant who has 'continuous and systematic' contacts with the forum state, even if the injuries at issue in the lawsuit did not arise out of the defendant's activities directed at the forum." (quoting Helicopteros, 466 U.S. at 416)).
63. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980) (stating manufacturer or distributor may be subject to suit in state where sale arises from efforts to serve market of state).
64. See RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997) (stating that general jurisdiction applies only to suits "neither arising out of nor related to" nonresident defendant's contacts with forum and "is permitted only where the defendant has 'continuous and systematic general business contacts' with the forum," and that specific jurisdiction refers to personal jurisdiction in suit "'arising out of or related to the defendant's contacts with the forum'" (quoting Helicopteros, 466 U.S. at 414 n.8, 416)).
65. Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994) (same). Of course, Twombly's mandate applies only to federal courts. States are free to employ, and indeed do employ, their own mechanisms for screening allegations of personal jurisdiction.
66. See, e.g., FLA. STAT. § 48.193 (2009) (setting out requirements for state to exercise personal jurisdiction over defendant); COLO. REV. STAT. § 13-1-124 (2009) (same).
67. N.C. GEN. STAT. § 1-75.4 (2009) (same). It is beyond the scope of this Article to examine each of the states' various procedural permutations. But, as one scholar noted, "although the full impact of Bell Atlantic Corp. v. Twombly on federal pleading standards remains to be seen, that decision has the potential to create real inconsistencies between state and federal pleading standards." Adam N. Steinman, What Is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 NOTRE DAME L. REV. 245, 281-82 (2008).
68. See, e.g., O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007) (setting out purposeful availment, "arise out of or relate to," and due process prongs); Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999) (same).
69. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); Hanson v. Denckla, 357 U.S. 235, 253 (1958); Phillips Exeter Acad., 196 F.3d at 288; Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993).
70. Burger King, 471 U.S. at 472; Phillips Exeter Acad., 196 F.3d at 288.
71. Burger King, 471 U.S. at 476; Phillips Exeter Acad., 196 F.3d at 288.
72. See, e.g., Sandy Lane, 496 F.3d at 318 (lamenting that Supreme Court had not "explained the scope" of purposeful availment requirement). Some courts have stated that the disjunctive phrasing "arise out of or relate to" itself implies a "flexib[le]" and "relax[ed]" standard. E.g., Akro Corp. v. Luker, 45 F.3d 1541, 1547 (Fed. Cir. 1995) (quoting Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir. 1994)) (internal quotation marks omitted). The Supreme Court, however, has urged against attaching any significance to its use of the disjunctive, emphasizing: We do not address ⋯ . whether the terms "arising out of" and "related to" describe different connections ⋯ . Nor do we reach the question whether, if the two types of relationship differ, a forum's exercise of personal jurisdiction in a situation where the cause of action "relates to," but does not "arise out of," the defendant's contacts with the forum should be analyzed as an assertion of specific jurisdiction. Helicopteros, 466 U.S. at 415 n.10.
73. See Sandy Lane, 496 F.3d at 318 (citing Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 102-05 (3d Cir. 2004) (Scirica, J., dissenting in part) (noting "divergent interpretations of 'arise out of or relate to'" phrase in specific jurisdiction analysis)).
74. Id. at 318-20.
75. See Shute v. Carnival Cruise Lines, 897 F.2d 377, 385-86 (9th Cir. 1990) (holding Carnival's solicitation of business in Washington was "but for" cause of plaintiff's fall on Carnival cruise ship in international waters), rev'd on other grounds, 499 U.S. 585 (1991).
76. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 580 (Tex. 2007) (quoting Shute, 897 F.2d at 384).
77. 726 F.2d 1209 (7th Cir. 1984).
78. Deluxe, 726 F.2d at 1210-11.
79. Id. at 2111.
80. Id. at 1212.
81. Id. at 1216 (emphasis added).
82. 897 F.2d 377 (9th Cir. 1990), rev'd on other grounds, 499 U.S. 585 (1991).
83. Shute, 897 F.2d at 379.
84. Id.
85. Id. at 385-86.
86. Id. at 386.
87. Id. The Supreme Court later reversed the Ninth Circuit, holding that the forum selection clause was enforceable for other reasons. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 596-97 (1991). The Court declined to address the plaintiff's constitutional argument as to personal jurisdiction, since the forum selection clause was dispositive. Id. at 589.
88. Shute, 897 F.2d at 386.
89. See Felch v. Transportes Lar-Mex SA de CV, 92 F.3d 320, 324 (5th Cir. 1996) (finding no specific jurisdiction over Mexican trucking company that was sued in Texas when truck hit plaintiff's mother's vehicle on Mexican highway).
90. Gorman v. Grand Casino of La., Inc.-Coushatta, 1 F. Supp. 2d 656, 658 (E.D. Tex. 1998) (holding plaintiff's claim of sexual assault by casino employee did not support specific jurisdiction because claim did not arise out of casino's extensive advertising in Texas but arose from casino's Louisiana operations); Luna v. Compania Panamena de Aviacion, S.A., 851 F. Supp. 826, 832 (S.D. Tex. 1994) (holding no specific jurisdiction in Texas because plaintiff's death in plane crash over Panama "did not result from the fact that she purchased the ticket for her airline travel in Texas").
91. ervin v. Red River Ski Area, Inc., 711 F. Supp. 1383, 1389 (E.D. Tex. 1989) (holding plaintiffs could not assert specific jurisdiction over nonresident ski resort because their negligence claim did not arise out of its advertising contacts with Texas but arose as result of resort's alleged negligence in failing to maintain safe premises in New Mexico).
92. 652 F.2d 1260 (5th Cir. 1981).
93. See, e.g., Felch, 92 F.3d at 324 (finding no specific jurisdiction because connection between forumrelated activities and cause of action was not strong enough). See infra Part III.B for a discussion of the substantial connection test.
94. O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 322 (3d Cir. 2007).
95. Id. at 322-23 (citations omitted).
96. Id. at 319.
97. See, e.g., In re Oil Spill by Amoco Cadiz, 699 F.2d 909, 917 (7th Cir. 1983) (requiring that forum contacts be "critical steps in the chain of events that led to the [injury]").
98. Sandy Lane, 496 F.3d at 319-20 (citations omitted).
99. 882 F.2d 1087 (6th Cir. 1989).
100. Third Nat'l Bank, 882 F.2d at 1090 ("Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum State" (citing McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957)).
101. d. at 1088.
102. Id.
103. Id.
104. Id.
105. Id.
106. Id.
107. Id.
108. Id.
109. Id.
110. Id.
111. Id. at 1091.
112. Id.
113. Id.
114. Id. (quoting S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 384 n.27 (6th Cir. 1968) (emphasis added)).
115. Lakin v. Prudential Sec., Inc., 348 F.3d 704, 712 (8th Cir. 2003) (quoting Aftanase v. Econ. Baler Co., 343 F.2d 187, 197 (8th Cir. 1965)).
116. 528 F.3d 1087 (8th Cir. 2008).
117. Miller, 528 F.3d at 1089.
118. Id.
119. Id. at 1091.
120. Id. at 1092.
121. 926 P.2d 1085 (Cal. 1996).
122. Vons, 926 P.2d at 1096.
123. Id. at 1089.
124. Id.
125. Id.
126. Id.
127. Id. at 1090.
128. Id. at 1101-02.
129. See Lea Brilmayer, Related Contacts and Personal Jurisdiction, 101 HARV. L. REV. 1444, 1461 (1988) (arguing in context of malfunctioning product cases that predicating specific jurisdiction upon presence of similar products in forum state risks turning specific jurisdiction into general jurisdiction).
130. Vons, 926 P.2d at 1097. The California Supreme Court in Vons discussed and rejected this criticism. Id. (rejecting defendant's argument relying on reasoning similar to that presented in Lea Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction, 1980 SUP. CT. REV. 77, 84). According to Professor Brilmayer, the purpose of specific jurisdiction is to allow states to regulate conduct within the state, but the substantial connection test does not necessarily limit specific jurisdiction to those kinds of claims. See Brilmayer, supra note 102, at 1459-60. The California Supreme Court concluded, however, that Professor Brilmayer's argument is based on a faulty assumption. Regulating in-state conduct is not the only purpose of specific jurisdiction; rather, states also have an interest in "providing a judicial forum for its residents-so long as the goal of fairness to defendants also is observed." Vons, 926 P.2d at 1110. The U.S. Supreme Court has provided some guidance as to how much "relatedness" will support specific jurisdiction over a nonresident defendant.
131. In Rush v. Savchuk, the plaintiff filed a complaint in Minnesota for personal injuries arising from an Indiana automobile accident. 444 U.S. 320, 322 (1980). The plaintiff claimed jurisdiction was proper in Minnesota because the defendant's insurance company did business there, and the insurer's obligation to defend and indemnify its insured in the accident litigation was inevitably the focus that would determine the victim's rights and obligations. Id. at 328. The Supreme Court disagreed, holding that the insurance company's contacts could not be imputed to the defendant for the purpose of establishing personal jurisdiction. Id. at 328-29. Therefore, there were not "significant contacts between the litigation and the forum" because "[t]he insurance policy [was] not the subject matter of the case ⋯ nor [was] it related to the operative facts of the negligence action." Id. at 329.
132. O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 318-19 (3d Cir. 2007).
133. See, e.g., Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 35 (1st Cir. 1998) (holding that defendant's contacts must be "legal cause" of plaintiff's injury, i.e., "the defendant's in-state conduct [must] g[i]ve birth to the cause of action" (quoting United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992)) (internal quotation marks omitted)).
134. Sandy Lane, 496 F.3d at 318.
135. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
136. See infra Part IV for an analysis of how courts must weigh the tradeoffs between cost, efficiency, and access to courts.
137. 793 F.2d 427 (1st Cir. 1986).
138. Marino, 793 F.2d at 427.
139. Id. at 431 (alteration in original).
140. Id. at 430; see also Wims v. Beach Terrace Motor Inn, Inc., 759 F. Supp. 264, 268 (E.D. Pa. 1991) (holding that causal link between brochures Inn sent to Pennsylvania and injury sustained at Inn in New Jersey was "simply too attenuated to say that the injury arose from Beach Terrace's activities in the Commonwealth of Pennsylvania").
141. Simpson v. Quality Oil Co., 723 F. Supp. 382, 388 (S.D. Ind. 1989) (holding that "substantive relevance" is proper test for exercise of specific jurisdiction).
142. Dirks v. Carnival Cruise Lines, 642 F. Supp. 971, 975 (D. Kan. 1986) (finding connection between cruise ship operator's negligent preparation of food on board ship in California and its acts of soliciting passengers and sending tickets to Kansas too tenuous to support jurisdiction).
143. 907 F.2d 1256 (1st Cir. 1990).
144. Pizzaro, 907 F.2d at 1257-58q.
145. Id. at 1258.
146. Id. at 1259.
147. Id. at 1260.
148. See, e.g., Savage v. Bioport, Inc., 460 F. Supp. 2d 55, 62-63 (D.D.C. 2006) (stating that, if plaintiff is claiming jurisdiction based on specific jurisdiction, court is more likely to deny plaintiff's request for discovery relating to contacts that do not arise out of plaintiff's claim).
149. See infra notes 171-78 and accompanying text for an analysis of the colorable claim test and how courts weigh the costs of discovery.
150. 471 U.S. 462 (1985).
151. 550 U.S. 544 (2007).
152. For a general history of AT&T and the events leading to its divestiture, see generally JAMES R. MESSENGER, THE DEATH OF THE AMERICAN TELEPHONE & TELEGRAPH COMPANY: HOW "MA BELL" DIED GIVING BIRTH TO THE INFORMATION AGE (2007). For an early history of AT&T, see ALBERT BIGELOW PAINE, IN ONE MAN'S LIFE: BEING CHAPTERS FROM THE PERSONAL & BUSINESS CAREER OF THEODORE N. VAIL 98-145 (Hayne Press 2007) (1921).
153. See Twombly, 550 U.S. at 567-68 ("In the decade preceding the 1996 [Telecommunications] Act and well before that, monopoly was the norm in telecommunications, not the exception.").
154. Id. at 549.
155. see also United States v. AT&T Co., 552 F. Supp. 131, 147-234 (D.D.C. 1982) (affirming that antitrust consent decree ordering AT&T to divest of local operating companies was in "public interest" and describing divestiture plan), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001 (1983).
156. The regional companies were also sometimes referred to as "Regional Bell Operating Companies." Twombly, 550 U.S. at 549.
157. Id. (quoting AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371 (1999)) (internal quotation marks omitted).
158. see also 47 U.S.C. §§ 251-252 (2006) (stating statutory duties of telecommunications carriers).
159. Twombly, 550 U.S. at 549 (quoting Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 402 (2004)) (internal quotation marks omitted).
160. Id.
161. Id. at 550 (quoting Amended Complaint at para. 53, app. 28, 313 F. Supp. 2d 174 (S.D.N.Y. 2003) (No. 02 Civ. 10220 (GEL))) (internal quotation marks omitted).
162. Id.
163. Id. at 550-51.
164. Id. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
165. Id. (alterations in original) (footnote omitted) (citations omitted).
166. Id. at 556.
167. Id. at 557.
168. Id.
169. Id. at 556.
170. Id. at 558 (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216, at 233-34 (3d ed. 2004)) (internal quotation marks omitted).
171. Id. at 558-60.
172. Id. at 557.
173. Id. at 557-58 (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
174. Id. at 558.
175. see also Martha Neil, OK, Discovery's a Problem, But What Can Be Done About It?, ABA JOURNAL: LAW NEWS NOW, Sept. 11, 2008, http://www.abajournal.com/ news/ok-discoverys-a-problem-but-what-can-be-done-about-it/ (reporting that survey of trial lawyers found that discovery costs prevent some cases from being brought to trial).
176. Twombly, 550 U.S. at 558 (citation omitted) (quoting Associated Gen. Contractors, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 528 n.17 (1983)).
177. Id. at 559.
178. see also Stancil, supra note 29, at 94-95 (recommending bifurcation of pleading standards along cost disparity lines to avoid plaintiffs' filing of "objectively frivolous lawsuits when they can impose higher net pretrial costs upon defendants than defendants can impose upon plaintiffs"). The Senate also has recognized this possibility, albeit in the context of their deliberations preceding the enactment of the Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4 (2006).
179. See S. REP. NO. 104-98, at 8 (1995) (finding that coercive or in terrorem settlements are driven by time that employees must spend responding to discovery requests and providing testimony), reprinted in 1995 U.S.C.C.A.N. 679, 687; H.R. REP. NO. 104- 369, at 37 (1995) (Conf. Rep.) (quoting general counsel of investment bank as stating that in securities fraud cases, discovery costs are "'roughly 80% of total litigation costs'" (citing Hearings Before the Securities Subcomm. of the Senate Comm. on Banking, Housing & Urban Affairs, 104th Cong., 1st Sess. (Mar. 2, 1995) (testimony of former SEC Commissioner J. Carter Beese, Jr., Chairman of the Capital Markets Regulatory Reform Project, Center for Strategic and International Studies))), reprinted in 1995 U.S.C.C.A.N. 730, 736.
180. Twombly, 550 U.S. at 559 (alteration in original) (quoting Dura Pharms., 544 U.S. at 347).
181. See Jack B. Weinstein, The Role of Judges in a Government of, by, and for the People: Notes for the Fifty-Eighth Cardozo Lecture, 30 CARDOZO L. REV. 1, 107-08 (2008) (noting Twombly relates to antitrust regulation, but federal courts have applied new standard in other types of cases). Moreover, one could argue that the Supreme Court itself has extended the reach of Twombly.
182. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314-15 (2007) (requiring that allegations of scienter in a securities fraud action under Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4 (2006), be not just plausible, but in fact be "cogent and at least as compelling as any opposing inference of nonfraudulent intent"). Not all circuits take such an expansive view of Twombly, however. In Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., the Court of Appeals for the D.C. Circuit concluded that Twombly "leaves the long-standing fundamentals of notice pleading intact." 525 F.3d 8, 15 (D.C. Cir. 2008). That circuit was emphatic that in Twombly the Supreme Court "indicated quite clearly" that it did not intend to create a heightened pleading standard for all cases arising under the Federal Rules of Civil Procedure. Id. at 16 (arguing Twombly reiterated that heightened pleading standard would have to arise from amendment of Federal Rules of Civil Procedure). The Ninth Circuit shares the D.C. Circuit's limited view of Twombly. See Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 841-42 (9th Cir. 2007) (citing Twombly as instructing courts "not to impose such heightened [pleading] standards").
183. ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008).
184. Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
185. see also Benzman v. Whitman, 523 F.3d 119, 129 (2d Cir. 2008) (stating that under Twombly, an implausible claim must be supported by supplemental facts in order to survive motion to dismiss); Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008) (applying Twombly to case alleging discrimination in violation of Fair Housing Act).
186. ATSI Commc'ns., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 n.2 (2d Cir. 2007) (stating belief that Twombly applies beyond only antitrust cases (citing Iqbal, 490 F.3d at 158)); Iqbal, 490 F.3d at 155-58 (stating Twombly does not apply only to antitrust cases, and Twombly does not require heightened fact pleading, only flexible plausibility standard requiring pleader to amplify claim with factual allegations when necessary to render claim plausible).
187. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
188. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008).
189. Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008) (holding that allegation of lack of rational relationship between statutory prisoner exclusion and state interest does not meet plausibility standard due to presumption of legislative rationality and "readily apparent justification" for legislation).
190. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 n.2 (6th Cir. 2008) (compiling list of these cases and their contexts).
191. Stalley ex rel. U.S. v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007).
192. VanZandt v. Okla. Dep't of Human Servs., 276 F. App'x 843, 847 (10th Cir. 2008) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)) (internal quotation marks omitted).
193. see also Patton v. West, 276 F. App'x 756, 758 (10th Cir. 2008) (discussing action brought under 42 U.S.C. §§ 1983, 1985, and 1986).
194. Sec'y of Labor v. Labbe, 319 F. App'x 761, 763 (11th Cir. 2008).
195. see also Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007) (holding that courts may not assess probability of facts, but plaintiff must "allege[] enough facts to suggest, raise a reasonable expectation of, and render plausible" his claim).
196. See, e.g., Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 182 (3d Cir. 1988) (discussing long-held belief by courts that modern litigation is too expensive to waste time and money on "fanciful claims").
197. Jacobs v. Tempur-Pedic Int'l, Inc., No. 4:07-CV-02-RLV, 2007 WL 4373980, at
198. 2 (N.D. Ga. Dec. 11, 2007) (recognizing that while courts should be cautious in granting motions to dismiss prior to discovery, courts must remember that antitrust discovery can be expensive).
199. Asahi Glass Co. v. Pentech Pharms., Inc., 289 F. Supp. 2d 986, 995 (N.D. Ill. 2003) (holding threshold of plausibility must be met before antitrust case may proceed to discovery).
200. Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 B.U. L. Rev. 1217, 1238 (2008) (reasoning Court decided Twombly as means to prevent costs of discovery from incentivizing defendants to settle without regard to merits of case).
201. Picker, supra note 12, at 202-03 (stating that Twombly suggests Court believes refining discovery rules will not control discovery costs, and heightened standards outweigh plaintiffs' inability to get at antitrust conspiracies).
202. see also Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007) (reasoning that discovery concerns evident in Twombly suggest that adjusted pleading standards only apply to cases where massive discovery may create unacceptable settlement pressures), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
203. Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 802-03 (7th Cir. 2008).
204. Twombly, 550 U.S. at 559 (alteration in original) (internal quotation marks omitted).
205. In this respect, Twombly may also reflect the character and personal proclivities of its author, Justice David Souter, whose frugality has long been noted.
206. See, e.g., Jerome Cramer, Mr. Souter Comes to Town, TIME, Oct. 15, 1990, at 67 (describing Souter's "image as a shy, decent man who likes old cars, blackand- white television sets and the Boston Red Sox" and who lives in a "modest one bedroom apartment"); Jennifer O'Shea, 10 Things You Didn't Know About David Souter, U.S. NEWS & WORLD REP., Oct. 1, 2007, http://www.usnews.com/articles/news/national/2007/10/01/10-things-you-didnt- know-about-david-souter.html (noting that Souter "often brings his own lunch to the office and, at the time of his confirmation, claimed not to own a color television"). Interestingly, this is not the first time that the normally old-fashioned Justice Souter has taken the lead in a case that deals with modern technology.
207. See JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 245-46 (2007) (discussing Justice Souter's handling of Metro- Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), and noting that this "man who worked exclusively with a fountain pen" crafted opinion that "showed a sophisticated understanding of the markets for both technology and entertainment").
208. 550 U.S. 544 (2007).
209. FED. R. CIV. P. 12(b)(2).
210. See Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (stating that plaintiffs did not produce enough evidence to meet burden).
211. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998) (discussing plaintiff's burden with or without evidentiary hearing); CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir. 1996) (stating that plaintiff bears burden).
212. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (quoting Weller v. Cromwell Oil Co., 504 F.2d 927, 930 (6th Cir. 1974)).
213. Id. (citing Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989)).
214. Id.
215. Dean, 134 F.3d at 1272; Theunissen, 935 F.2d at 1458; Serras, 875 F.2d at 1214.
216. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). Moreover, "[i]n considering a challenge on such a record, the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction." Id. at 676. To establish a prima facie case for personal jurisdiction, a plaintiff must show: (1) that a statute or rule authorizes service of process on the nonresident defendant, and (2) that service on the nonresident defendant comports with the requirements of the Due Process Clause. In re Celotex Corp., 124 F.3d 619, 627 (4th Cir. 1997).
217. Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992).
218. see also Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (stating that when court's power to exercise personal jurisdiction over nonresident defendant is challenged by Rule 12(b)(2) motion, judge resolves questions of jurisdiction, with plaintiff carrying burden to prove grounds for jurisdiction by preponderance of evidence).
219. See, e.g., Boit, 967 F.2d at 675 (noting rule that plaintiffs may not rely on unsupported assertions in pleadings to establish prima facie existence of personal jurisdiction).
220. See, e.g., United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 625 (1st Cir. 2001) (noting that plaintiff who makes out case against out-of-state corporation for existence of personal jurisdiction may be entitled to degree of jurisdictional discovery if corporation asserts jurisdictional defense).
221. Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 964 (1st Cir. 1997) (same).
222. Savage v. Bioport, Inc., 460 F. Supp. 2d 55, 62 (D.D.C. 2006) (stating that courts act reasonably in requiring plaintiff to show colorable basis for jurisdiction before subjecting defendant to "intrusive and burdensome discovery" (citation omitted) (internal quotation marks omitted)).
223. Bancoult v. McNamara, 214 F.R.D. 5, 10 (D.D.C. 2003) (stating that denial of discovery is not abuse of discretion where plaintiff fails to assert colorable claim of jurisdiction). "In addition to making a colorable claim, it is also incumbent upon the plaintiff to 'present facts to the court which show why jurisdiction would be found if discovery were permitted.'" Negrón-Torres v. Verizon Commc'ns, Inc., 478 F.3d 19, 27 (1st Cir. 2007) (quoting Swiss Am. Bank, 274 F.3d at 626).
224. Bancoult, 214 F.R.D. at 10 (quoting GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000)) (internal quotation marks omitted).
225. Savage, 460 F. Supp. 2d at 62 (citation omitted) (internal quotation marks omitted).
226. See, e.g., Boit, 967 F.2d at 675 (stating long-established rule that plaintiffs cannot rely on unsupported pleading allegations to make prima facie case for personal jurisdiction).
227. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
228. Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 313 (S.D. Ind. 1997).
229. see also Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 732 (11th Cir. 1984) (finding that court can deny motion to compel discovery after concluding that questions are irrelevant).
230. For example, if the plaintiff claims that the court has jurisdiction based on general jurisdiction, the court is likely to require a greater threshold showing from the plaintiff than if he had claimed that the court had jurisdiction based on specific jurisdiction.
231. See Terracom v. Valley Nat'l Bank, 49 F.3d 555, 562 (9th Cir. 1995) (finding that district court did not abuse discretion in refusing discovery request where plaintiff offered only bare allegations of personal jurisdiction in face of specific factual denials made by defendant). If the plaintiff is claiming jurisdiction based on specific jurisdiction, the court is more likely to deny the plaintiff's request for discovery relating to contacts that do not arise out of the plaintiff's claim. E.g., Savage, 460 F. Supp. 2d at 62-63.
232. In contrast to the "colorable claim" requirement, the Third Circuit has adopted a more liberal standard, which requires only that the plaintiff's claim of personal jurisdiction not be "frivolous." Compagnie des Bauxites de Guinee v. L'Union Atlantique S.A. d'Assurances, 723 F.2d 357, 362 (3d Cir. 1983) (finding that district court should allow discovery where claim is not "clearly frivolous").
233. see also Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 458 (3d Cir. 2003) (finding that courts should assist plaintiffs by permitting jurisdictional discovery if claim isn't clearly frivolous).
234. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 107 F.3d 1026, 1042 (3d Cir. 1997) (stating that jurisdictional discovery is allowed unless claim is "clearly frivolous" (citation omitted) (internal quotation marks omitted)).
235. Nehemiah v. Athletics Cong. of U.S.A., 765 F.2d 42, 48 (3d Cir. 1985) (reiterating not "clearly frivolous" standard expressed in Compagnie des Bauxites de Guinee). This standard requires only that the plaintiff provide "some competent evidence to demonstrate that personal jurisdiction over the defendant might exist before allowing discovery to proceed" and the "court must be satisfied that there is some indication that this particular defendant is amenable to suit in this forum." Hansen v. Neumueller GmbH, 163 F.R.D. 471, 475 (D. Del. 1995). Put otherwise, if a plaintiff presents factual allegations that suggest "with reasonable particularity" the possible existence of the requisite "contacts between the defendant and the forum state," the plaintiff's right to conduct jurisdictional discovery should be sustained. Mellon Bank (E.) PSFS v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (citation omitted) (internal quotation marks omitted). Under the standard used by courts in the Third Circuit, however, it is inappropriate for the court to allow discovery if the plaintiff presents no jurisdictional facts or relies on the "bare allegations" in his complaint.
236. See Hansen, 163 F.R.D. at 475-76 (articulating standard and finding that plaintiff may not simply rely on complaint as grounds for additional discovery); Sandvik AB v. Advent Int'l Corp., 83 F. Supp. 2d 442, 447 (D. Del. 1999) (stating that although courts typically allow discovery to establish jurisdiction when complaint alone is inadequate for this purpose, courts need not allow discovery if suit is frivolous), aff'd, 220 F.3d 99 (3d Cir. 2000).
237. Joint Stock Soc'y v. Heublein, Inc., 936 F. Supp. 177, 192 (D. Del. 1996) (noting that plaintiff cannot rely on allegations in complaint after discovery has begun); Garshman v. Universal Res. Holding, Inc., 641 F. Supp. 1359, 1366 (D.N.J.1986) (holding that mere unsupported allegation that defendant "transacts business" in area is "clearly frivolous"), aff'd, 824 F.2d 223 (3d Cir. 1987). Nevertheless, in the Third Circuit, a "low threshold for permitting [personal jurisdiction] discovery" prevails.
238. Greene v. New Dana Perfumes Corp. (In re Renaissance Cosmetics, Inc.), No. 99-783, 2000 WL 33712289, at 3.
239. (Bankr. D. Del. Dec. 14, 2000).
240. Hansen, 163 F.R.D. at 475.
241. Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 709 (1982).
242. See, e.g., In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 208 (2d Cir. 2003) (holding that discovery should have been permitted to develop facts related to degree of control of foreign corporation over its in-forum subsidiary); Renner v. Lanard Toys Ltd., 33 F.3d 277, 283-84 (3d Cir. 1994) (holding that discovery should have been permitted to develop facts necessary to determine whether there was jurisdicti under post-Asahi stream-of-commerce theory); Crane v. Carr, 814 F.2d 758, 760 (D.C. Cir. 1987) (holding that discovery should have been permitted to determine if multifactor long-arm statute for personal jurisdiction in District of Columbia had been satisfied); Hansen, 163 F.R.D. at 475 (allowing plaintiff to go forward with limited discovery to establish personal jurisdiction over foreign corporation alleged to have manufactured and installed equipment in forum state that injured plaintiff). Further, jurisdictional discovery is more likely to be granted where the defendant is a corporate entity, rather than an individual. See Mass. Sch. of Law, 107 F.3d at 1042 (noting that jurisdictional discovery relates to corporate defendants and whether they "do[] business" in state, and where defendant is individual, presumption of discovery diminishes).
243. Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255-56 (1st Cir. 1966).
244. Ellis v. Fortune Seas, Ltd., 175 F.R.D. 308, 313 n.3 (S.D. Ind. 1997).
245. See, e.g., Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 947 (7th Cir. 2000) (noting that foreign defendants should not usually be subjected to extensive and burdensome discovery for purposes of determining personal jurisdiction); Jazini v. Nissan Motor Co., 148 F.3d 181, 186 (2d Cir. 1998) (holding that it would be inappropriate for court to deviate from established discovery rules for foreign defendants simply because plaintiffs have problems meeting standards).
246. Ellis, 175 F.R.D. at 312.
247. 549 U.S. 422 (2007).
248. Sinochem Int'l, 549 U.S. at 435.
249. Nanya Tech. Corp. v. Fujitsu Ltd., No. 06-00025, 2007 WL 1845556, at
250. 1 (D. Guam June 27, 2007).
251. Id. at 5.
252. (stating that issue of personal jurisdiction has resulted in hundreds of thousands of pages of discovery into connection between defendants and their contacts with foreign nation, as well as hundreds of unanswered filings due to jurisdictional issue).
253. Anderson v. Bedford Assocs., Inc., No. 3:97 CV 1018, 1997 WL 631117, at 1
254. 5 (D. Conn. Sept. 19, 1997).
255. Bellepointe, Inc. v. Kohl's Dep't Stores, Inc., 975 F. Supp. 562, 565 (S.D.N.Y. 1997).
256. For a similar discussion of the proposed role of a magistrate in evaluating plaintiffs' requests to litigate pseudonymously, and in overseeing the compilation and review of documentation necessary to determine the assets of an alleged debtor held in civil contempt, see, respectively, Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff in the Information Age, 53 U. KAN. L. REV. 195, 237-40 (2004), and Jayne S. Ressler, Civil Contempt Confinement and the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: An Examination of Debtor Incarceration in the Modern Age, 37 RUTGERS L.J. 355, 394-97 (2006).
257. 28 U.S.C. § 636 states in relevant part: "Notwithstanding any provision of law to the contrary ⋯ a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court ⋯ ." 28 U.S.C. § 636(b)(1)(A) (2006).
258. See, e.g., CAL. CONST. art. VI, § 22 ("The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties." (emphasis added)).
259. S. REP. NO. 96-74, at 3 (1979) (expressing purpose of Federal Magistrates Act as facilitating rational division of labor among district court judicial officers, since magistrate relieves judges from personally hearing each pretrial motion or proceeding in preparation of case for trial), reprinted in 1979 U.S.C.C.A.N. 1469, 1471-72; S. REP. NO. 92-1065, at 3 (1972) (noting that magistrates provide valuable assistance to district court judges, thereby allowing those judges to spend more time on actual trial of cases), reprinted in 1972 U.S.C.C.A.N. 3350, 3351. The Supreme Court has also affirmed the intentions of Congress in establishing the position of the federal magistrate.
260. See, e.g., Peretz v. United States, 501 U.S. 923, 934 (1991) (holding that Federal Magistrates Act was designed to relieve district courts of "subordinate duties that often distract the courts from more important matters"); McCarthy v. Bronson, 500 U.S. 136, 142 (1991) (finding that policy behind Act authorizes greater use of magistrates to assist federal judges); Mathews v. Weber, 423 U.S. 261, 268 (1976) (finding that Congress intended magistrates to assist with vast amount of additional work created for district courts); Wingo v. Wedding, 418 U.S. 461, 463 (1974) (noting that Act authorizes magistrates to perform duties formerly allocated to U.S. commissioners).
261. See, e.g., Cimon v. Guardian Life Ins. Co. of Am., No. 03-255-P-H, 2004 WL 444026 (D. Me. Mar. 11, 2004) (denying, in decision by magistrate, plaintiff's motion for jurisdictional discovery and recommending denial of plaintiff's motion to transfer), aff'd in part, vacated in part sub nom. Cimon v. Gaffney, 401 F.3d 1 (1st Cir. 2005).