There are few rights more important to civil defendants—particularly corporate entities—than personal jurisdiction, which restricts “‘judicial power not as a matter of sovereignty, but as a matter of individual liberty,’” because “due process protects the individual’s right to be subject only to lawful power.” Id. (quoting Ins. Corp. of Ireland v. Campagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). In light of the Supreme Court’s recent decisions in Daimler AG v. Bauman Goodyear Dunlop Tires Ops., 571 U.S. 117 (2014)., S.A. v. Brown, 564 U.S. 915 (2011)., Walden v. Fiore, 571 U.S. 277 (2014)., and BNSF Railway Co. v. Tyrell, 137 S. Ct. 1549 (2017)., among others, this once tepid defense now has significant teeth.
When analyzing whether a plaintiff has sufficiently pleaded that the exercise of personal jurisdiction over a particular defendant is proper, courts must assess each defendant’s contacts with the forum separately. Calder v. Jones, 465 U.S. 783, 790 (1984); accord Rush v. Savchuk, 444 U.S. 320, 332 (1980) (“The requirements of International Shoe . . . must be met as to each defendant over whom a state court exercises jurisdiction.”) As the Supreme Court has emphasized, this is “a forum-by-forum, sovereign-by-sovereign analysis” that has to be satisfied for each claim against each defendant. J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 884 (2011). In most cases, answering that question is a straightforward analysis: the plaintiff simply has to plead enough facts to tie the defendant to the forum State.
But in products liability cases against multiple parties—particularly in the mass tort or environmental context—this approach is often muddled by the sheer number of defendants being sued. More often than not, plaintiffs in those cases tend to err on the side of cursory jurisdictional allegations against each defendant, adopting a “group” or “aggregated” pleading approach where they lump all of the defendants together in a single allegation connected by multiple “and/or” clauses.
At first blush, this appears to be patently insufficient. After all, how can a court conduct a defendant-by-defendant analysis when all of the allegations are generic and indistinguishable among a large number of defendants? More to the point, how can defendants meaningfully challenge the court’s exercise of personal jurisdiction if boilerplate allegations are sufficient?
Nevertheless, some courts have found these types of pleadings sufficient to warrant jurisdictional discovery, if not the full exercise of personal jurisdiction altogether. A recent example comes from the United States District Court for the Eastern District of North Carolina, which reached that exact conclusion in its 2022 decision in Weaver v. 3M Co. No. 5:22-CV-116-FL, 2022 WL 17744491 (E.D.N.C. Dec. 16, 2022).
This approach is flawed for at least two reasons. For starters, it is a misapplication of governing principles of the personal jurisdiction analysis, effectively yielding any independent duty of the courts in protecting defendants’ due process rights to whatever allegations are in the plaintiff’s complaint, no matter how paltry they may be.
Moreover, this approach is an outlier in the national trend is favoring similarly deficient pleadings and finding they are not enough to satisfy the plaintiff’s burden of establishing personal jurisdiction.
In contrasting these approaches—and considering how courts ought to look at group pleadings generally for this purpose—this article first summarizes the court’s decision in Weaver. Then it highlights that decision’s analytical flaws and explains why it is an outlier.
The Weaver Approach: While Group Pleadings Aren’t Ideal, They May Be Enough
In Weaver, husband and wife plaintiffs brought suit against dozens of defendants alleging they were responsible for the husband’s lung cancer, which the plaintiffs suggest stemmed from cumulative exposure to asbestos.
In the operative Complaint, the plaintiffs broadly stated that the court ha[d] personal jurisdiction over the Defendants because Plaintiffs [sic] claims arise from Defendants’ conduct in: (a) Transacting business in this State, including the sale, supply, purchase, and/or use of asbestos and/or asbestos-containing products, within this State; (b) Contracting to supply services or things in the State; (c) Commission of a tortious act in whole or in part in this State; (d) Having an interest in, using, or possessing real property in this State; and/or (e) Entering into a contract to be performed in whole or in part by either party in this State. Weaver v. 3M Co., No. 5:22-cv-116, Am. Compl. ¶ 2 (ECF No. 190) (emphases added).
The plaintiffs also alleged that their “claims . . . arise out of Defendants’ purposeful efforts to serve directly or indirectly the market for their asbestos and/or asbestos-containing products in this State, either through direct sales or through utilizing an established distribution channel with the expectation that their products would be purchased and/or used within North Carolina.” Id. ¶ 3 (emphases added). Finally, the plaintiffs claimed that “[a]ll of the named Defendants are foreign corporations whose substantial and/or systematic business in North Carolina caused injury to Plaintiffs in this State, which subjects them to the jurisdiction of the North Carolina courts pursuant to the North Carolina Long-Arm Statute and the United States Constitution.” Id. ¶ 4 (emphasis added).
One of the defendants, Eaton Hydraulics LLC (“Eaton”), moved to dismiss, arguing that the plaintiffs’ jurisdictional allegations were insufficient. In the Complaint, the only specific factual claim levied against Eaton was that it “developed, manufactured, marketed, distributed and/or sold products and/or equipment foreseeably designed to be used with asbestos-containing products and/or equipment, including, but not limited to, asbestos containing products, and hydraulic pumps.” Id. ¶ 29 (emphases added).
The crux of Eaton’s argument was that the plaintiffs had failed to allege any specific conduct that would subject it to personal jurisdiction in North Carolina courts. Emphasizing the “and/or” allegations, Eaton cited the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly—a case establishing the standard for ruling on a motion to dismiss for failure to state a claim, not for lack of jurisdiction—for the proposition that plaintiffs have to include “more than labels and conclusions” in their allegations. 550 U.S. 544, 555 (2007). Thus, according to Eaton, the plaintiffs’ failure to allege distinct acts against it was patently deficient to establish personal jurisdiction.
The district court was not persuaded, holding instead that the plaintiffs “ha[d] alleged facts that could establish the requisite contacts with North Carolina to support specific personal jurisdiction,” which was enough at this stage of the litigation. 2022 WL 17744491, at *2. And despite the nebulous allegations, the court found that it could not “yet determine whether plaintiffs will meet their burden ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence.” Id. (internal quotation marks and citation omitted).
As a result, the court denied Eaton’s motion without prejudice and ordered jurisdictional discovery. Plaintiffs entered a stipulation to dismiss Eaton less than two weeks later. Though this was undeniably a good result for Eaton, the court’s decision remains unchallenged, as the Fourth Circuit has now been deprived of an opportunity to weigh in.
The Majority Approach: Group Pleadings Cannot Establish Personal Jurisdiction as a Matter of Law
Fortunately, the Eastern District of North Carolina’s approach in Weaver appears to be the outlier. As a quick background, when conducting the personal jurisdiction analysis based on the contents of a complaint and supporting affidavits, courts agree that “the plaintiff has the burden of making a prima facie showing in support of its assertion of jurisdiction.” Universal Leather LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). And in deciding whether the plaintiff has done so, 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.” Coombs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Still, the plaintiff must allege facts sufficient to establish the proper exercise of personal jurisdiction as to each claim against each defendant. See Fed. Ins. Co. v. Lake Shore Inc., 886 F.2d 654, 658 (4th Cir. 1989 (holding that courts should ask whether “the defendant’s conduct and connection with the forum [s]tate are such that he should reasonably anticipate being haled into court there.”).
Indeed, the Supreme Court made clear in its 1984 decision in Calder v. Jones that “[e]ach defendant’s contacts with the forum State must be assessed individually.” 465 U.S. at 790. To that end, in their 1980 decision in Rush v. Savchuk, the Justices held that a court errs when it considers the “‘defending parties’ together and aggregate[es] their forum contacts in determining whether it ha[s] jurisdiction.” Rush, 444 U.S. at 331. These decisions—neither of which was cited by Eaton or the Court in Weaver—appear to undercut the conclusion that group allegations are sufficient at the pleading stage so long as they “could” give rise to a finding of personal jurisdiction down the road.
Other district courts in the Fourth Circuit have rejected the same aggregated pleading accepted by the Weaver court as being sufficient for alleging personal jurisdiction. In its 2004 decision In re Royal Ahold N.B. Sec. & ERISA Litig., for example, the District of Maryland held that the plaintiffs’ inclusion of a defendant in their “broad group pleadings” without any allegation of “a single specific act taken by [him]” could not establish that the exercise of personal jurisdiction was proper. 3511 F. Supp. 2d 334, 354 (D. Md. 2004) (“The plaintiffs include Boonstra in their broad group pleadings and allege that he acted as a control person, but they fail to note a single specific act taken by Boonstra directed at the U.S. Consequently, this court lacks personal jurisdiction over defendant Boonstra and must dismiss all claims against him.”).
And the Seventh Circuit, Kinslow v. Pullara, 538 F.3d 687, 692–93 (7th Cir. 2008) (affirming dismissal where the plaintiff “fail[ed] throughout this litigation to look at each separate [defendant’s] contacts with Illinois and his assumption that the defendants could instead be treated as a group”), along with the United States District Courts for the Central District of California, Broidy Cap. Mgmt., LLC v. Qatar, No. CV 18-2421-JFW(Ex), 2018 WL 9943551, at *7 (C.D. Cal. Aug. 22, 2018) (holding that conclusory, “shotgun” allegations against “Defendants” are insufficient to establish personal jurisdiction); see also id. at *9 (denying request for jurisdictional discovery or leave to amend because the jurisdictional allegations were attenuated and based on bare assertions in the face of specific denials made by the defendants), District of Colorado, Goodwin v. Bruggeman-Hatch, No. 13-cv-02973-REB-MEH, 2014 WL 4243822, at *1 (D. Col. Aug. 27, 2014) (“Plaintiff’s sweeping, undifferentiated references to groups of defendants (or even more globally to ‘defendants generally) are insufficient to . . . establish personal jurisdiction under this (or any) theory.” (citing Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“[t]he complaint [must] make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations[.]”)), District of Columbia, Elemary v. Philipp Holzmann A.G., 533 F. Supp. 2d 116, 122 (D.D.C. 2008) (holding that plaintiffs cannot “rely on conclusory allegations or “aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any individual defendant” (internal quotation marks and citation omitted)); id. at 128–29 (granting motion because the “complaint asserts, in essence, that some defendants, somehow, concealed some facts from her, for some period of time”), District of Delaware, Truinject Corp. v. Nestlé Skin Health,, S.A., No. 19-592-LPS-JLH, 2020 WL 1270916, at *3 (D. Del. March 17, 2020) (“Truinject’s group pleading has resulted in a complaint that fails to meet its burden to allege sufficient facts to establish that this Court may properly exercise personal jurisdiction over Nestlé Skin Health, S.A.”), Northern District of Georgia, Peeples v. Carolina Container, LLC, No. 4:19-CV-00021-HLM, 2019 WL 12338070, at *6 n.3 (N.D. Ga. Apr. 3, 2019) (“It may be possible that this group of individuals included agents of [a defendant]. If that is true, however, Plaintiff needed to allege so specifically. Plaintiff’s ‘group pleading’ methods are not an acceptable way to establish personal jurisdiction over multiple defendants at once.”); Knieper v. Forest Grp. USA, Inc., No. 4:15-CV-0222-HLM, 2016 WL 9450454, at *5 (N.D. Ga. March 3, 2016) (finding the “use of group pleading” and merely listing out jurisdictional allegations against the defendants collectively was insufficient), Southern District of New York, Berdeaux v. OneCoin Ltd., 561 F. Supp. 3d 379 (S.D.N.Y. 2021) (“A plaintiff must carry his burden” of pleading personal jurisdiction “with respect to each defendant individually.”); In re Aegean Marine Petroleum Network, Inc. Sec. Litig., 529 F. Supp. 3d 111, 135 (S.D.N.Y. 2021) (“To allege personal jurisdiction over a defendant, group pleading is not permitted. Instead, the plaintiff is required to establish personal jurisdiction separately over each defendant.”); HSM Holdings, LLC v. Mantu I.M. Mobile Ltd., No. 20-CV-967, 2021 WL 918556, at *15 (S.D.N.Y. Mar. 10, 2021) (“In relying only on group pleadings, in which it conflates multiple parties and fails to provide specific allegations, plaintiff neglects its burden of establishing personal jurisdiction over each defendant.”); In re SSA Bonds Antitrust Litig., 420 F. Supp. 3d 219, 233 (S.D.N.Y. 2019) (“Allegations in the form of a group pleading are insufficient, even for affiliated corporate entities.”); Gerstle v. Nat’l Credit Adjusters, LLC, 76 F. Supp. 3d 503, 510 (S.D.N.Y. 2015) (rejecting conclusory allegations and finding lack of specificity is highlighted when plaintiffs use same boilerplate description for actions of multiple defendants), and Southern District of Texas, Head v. Las Vegas Sands, LLC, 298 F. Supp. 3d 963, 973 (S.D. Tex. 2018) (“[A] plaintiff must submit evidence supporting personal jurisdiction over each defendant, and cannot simply lump them all together.”), have all reached similar conclusions, finding group pleading insufficient.
Thus, it is clear that Weaver is an outlier, though it is not alone. Practitioners should be ready to confront either the majority or minority approaches. To that end, best practices in a Weaver-leaning court suggest that defense lawyers ought to cite jurisdictional cases—like those referenced here—in attempting to defeat group jurisdictional pleadings rather than Twombly or Iqbal, which do not apply in this context.
Conclusion
The majority approach makes the most sense both as a matter of practicality and to ensure all defendants’ fundamental rights are protected to a sufficient degree. For the personal jurisdiction defense to retain its bite—which the Supreme Court has shown a desire to sharpen over the last fifteen years—generic and indistinguishable allegations, alone, should never be enough to satisfy a plaintiff’s threshold burden.
