One of the typical P-side responses in the post-Bauman personal jurisdictional environment, to a jurisdiction-based motion to dismiss seeking a “judicial determination” – the more onerous the better – in an attempt to both slow down the often inevitable dismissal and add to the onerous value of the case. This is the primary reason we note on our personal jurisdiction cheat sheet when the jurisdiction determination is denied.
Jurisdiction disputes rarely result in written court reports and even more rarely in the form of court reports appeal opinions. That’s why we think so In relation to Smith & Nephew Orthopedics Ltd.2022 WL 4285564 (Tex. App. 16 Sep 2022) (“S&NO’), is significant even if it is an unpublished opinion. Not only is it a favorable appellate ruling on the appropriate scope of the court’s finding, but it’s right in the middle of our own sandbox.
S&NO emerges from what appears to be an attempt to stage a mass extortion over hip implants before a pro-plaintiff (or very pro-discovery, at least) trial judge in Dallas. It is excessive court exposure by “UK companies” who have been joined as defendants in “five hip replacement” product liability lawsuits, all pending in the same court. 2022 WL 4285564, at *1. These UK defendants made a “special appearance” — this is how personal jurisdiction issues are decided in Texas — alleging that they lacked minimum contacts (ie, specific jurisdiction) with the Lone Star State. ID.
These five plaintiffs responded by demanding an affidavit from a company representative that, counting the subparts, requested disclosure of no fewer than twenty subjects. See S&NO, 2022 WL 4285564, at *2-3 (stating discovery demand in its entirety). Although the five plaintiffs’ surgeries were all “performed in 2009 and 2010,” I would. At *1, plaintiffs’ court disclosure claims covered a seven-year period between 2005 and 2012. ID. at *2-3. The British defendants argued “that the subjects are too broad and not adequately tailored to discover facts supporting the existence of a particular jurisdiction”. ID. at 3. The trial court fully enforced discovery, whereupon the British defendants sought Mandamus’ exoneration. ID. Mandamus Relief is notoriously difficult to obtain – “an exceptional cure available only under limited circumstances”. ID.
Since Ford Motor Co. v. Montana Eighth Judicial Dist. court, 141 S.Ct. 1017 (2021), through the Gresham Act, effectively nullified the “arising out of” aspect of the previously uniform “arising out of or relating to” specific test of personal jurisdiction (by making the other part of the test easier to pass, so that no one cares anymore the tougher prong), the relevant question was whether at the time of these plaintiffs’ operations the British defendants’ activities in Texas met “the requirement of association” of specific personal jurisdiction. S&NO2022 WL 4285564, at *4.
The Texas judicial finding “is limited to matters directly relevant to jurisdiction.” ID. (quotes and quotation marks omitted). This means that “information sought in establishing jurisdiction must be material to proving at least one contentious factor necessary to the plaintiff’s proposed theory or theories of personal jurisdiction”. ID. (Citation Regarding Christianson Air Conditioning & Plumbing, LLC, 639 SW3d 671, 678 (Tex. 2022)). Simply including “Texas” in a discovery request is not enough to make the request relevant. ID.
The forensic test used to assess relevance was the so-called “stream of commerce plus” analysis (but not very much plus) accepted by the Texas Supreme Court. ID.
Under that standard, plaintiff’s “broad” jurisdiction claims so clearly failed that mandamus was granted. Escrow topics that “generally request information about contacts for general ‘business purposes'” and thus “cover[ed] a variety of business matters unrelated to the allegedly defective products” are obviously exaggerated. S&NO, 2022 WL 4285564, at *5. The only discovery the five plaintiffs could seek was limited to the jurisdiction theory they asserted:
There [plaintiffs] have to show [that the UK defendants] placed the disputed product in the flow of commerce and other behaviors to establish a targeted claim of forum status and a link between contacts with the forum and the claims, [plaintiffs] are only entitled to information about contacts with Texas in connection with the allegedly defective products that gave rise to them [defendants’] possible liability.
ID. (citation omitted). It was therefore an abuse of power to allow generalizations into the “business purposes” of the British defendants – even those in Texas. ID.
Likewise, information about operations where the equipment in question was “made in the United States” or “marketed” was outright exaggerated, since it “was not limited to the components at issue in this case and the complainants’ contacts with Texas.” ID. And so on and so forth, through plaintiffs’ other discovery claims. ID. Hence S&NO:
conclude[d] The topics are too broad as they look for extraneous information that doesn’t support their stream of commerce plus theory. Accordingly, the trial court clearly abused its discretion in ordering affidavits from company officials on these issues.
ID. “Mandamus is lying when a trial court allows a plaintiff to participate in an investigation unrelated to a defendant’s upcoming special appearance.” ID. (quotes and quotation marks omitted).
Because Mandamus is extremely limited, this remedy was granted “conditionally” to be “exercised only if the district court does not vacate within fifteen days its order granting the foreclosure motion.” ID. The five plaintiffs were expected “to limit the claims to the appropriate jurisdiction and ensure that the costs associated with the judicial determination do not exceed the benefits thereof.” ID.
It is gratifying to see an appeals court rejecting a ridiculously broad requirement for a “find of jurisdiction” in this way. While Texas terminology may be specific to this state, the general principles of relevance, scope and proportionality apply S&NO are applied are essentially applicable everywhere.