Plausibly Pleading Personal Jurisdiction
Volume 82, No. 3, Fall 2009
By Jayne S. Ressler [PDF]

Courts have wrestled for decades with the phrase “arising from or related to” in the context of personal jurisdiction. Many courts have opted for liberal interpretations of the phrase, hanging their personal jurisdiction hats on the slim hook of “but for,” or even “substantial connection” analyses. In this Article, I investigate whether the recent Supreme Court case, Bell Atlantic Corp. v. Twombly, an antitrust case modifying the pleading rules regarding the merits of an action, suggests that the Supreme Court may have a preference for stricter pleading requirements across the board. I conclude that it does, and argue that courts should hold plaintiffs to a tighter standard when alleging that defendants are subject to personal jurisdiction in particular fora.

I also argue that Twombly gives courts guidance as to when to allow plaintiffs to take discovery to shore up weak personal jurisdiction claims. In Twombly, the Supreme Court expressed concern that discovery costs regarding the merits of an action have run amok, and that this may force defendants to settle valueless claims to avoid excessive discovery expenses. Personal jurisdiction discovery can involve similar costs, and Twombly’s message of frugality and careful review of claims should apply with equal weight to requests for such discovery.

I conclude the Article with three recommendations: (1) that courts adhere to the “proximate cause” test for specific jurisdiction, thus avoiding fishing expeditions and opening the door for personal jurisdiction discovery only in those rare cases when only the defendant has the evidence necessary to support the plaintiff’s assertion of personal jurisdiction; (2) that courts properly utilize the “colorable claim” requirement when plaintiffs request discovery regarding personal jurisdiction allegations; and (3) that the responsibility for evaluating plaintiffs’ personal jurisdiction claims be delegated initially to specialized judges or magistrates. The goal of these recommendations is to unify a heretofore ad hoc and unpredictable process and to heed Twombly’s mandate that costs and efficiency be essential factors in judicial decision making.

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