United States: Simple Question; Not So Simple Answer

Last Updated: July 13 2018
Article by James Beck

We were reading the appallingly bad personal jurisdiction (and other things, but those aren't what we're interested in today) decision in Hammons v. Ethicon, Inc., ___ A.3d ___, 2018 WL 3030754 (Pa. Super. June 19, 2018). While many of the jurisdictional issues in Hammons are factually limited to the particular defendant and the particular product, one holding made us drop what we were doing and turn to research.

That question is very simple – who has the burden of proof where the issue is whether a plaintiff's assertion of personal jurisdiction violates Due Process.

Hammons held:

A defendant making a challenge to the court's personal jurisdiction has, as the moving party, the burden of supporting its objection to jurisdiction.

2018 WL 3030754, at *6 (quoting De Lage Landen Services, Inc. v. Urban Partnership, LLC, 903 A.2d 586, 589 (Pa. Super. 2006)) (emphasis added).

This holding − that the defendant, not the plaintiff who asserted jurisdiction in the first place, has the burden of proof when a constitutional challenge to personal jurisdiction is raised – is virtually unprecedented and contrary to practically all the cases we have seen addressing this issue. It also seems intuitively wrong, since analogous issues, such as subject matter jurisdiction, standing, and the admissibility of evidence, impose the ultimate burden of proof on the party advocating jurisdiction or admissibility of evidence, even though the opposing party usually makes the motion to have the issue decided.

Moreover, in Hammons we think that the burden of proof question matters. Much of Hammons revolves around the same third-party contractor issue that we recently discussed in this post about another adverse jurisdictional decision from the same Philadelphia mass tort. Although Hammons tries harder to disguise the lack of causal relationship between what the third party did (knitting the mesh together) and any design or manufacturing claim actually asserted by the plaintiff (see 2018 WL 3030754, at *9 (defendant "worked together" with the third-party "in Pennsylvania to design, test and manufacture the" product), the problem we identified in the prior post still exists – Hammons never states how this third-party's activities contributed to the particular defect/injuries alleged by this plaintiff. None of the "specifications" for the knitting originated with the Pennsylvania entity, but rather with the defendant. Id. ("knitted . . ., and tested samples for, compliance with [defendant's] specifications").

Ultimately, we don't think that the Superior Court's proposition – that any allegation of "design" or "manufacturing" defect allows jurisdiction to rest on any arguably in-state "design" or "manufacturing"-related activities where those activities don't have anything to do with what allegedly injured the plaintiff – flies under Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ("BMS").

But there's a second set of allegations in Hammons, that the defendant "relied heavily on an Allentown, Pennsylvania gynecologist . . . for the development, study, and marketing of [the product]." Id.

Those facts, whether significant or wildly overblown, were nonetheless "trial evidence," id. − meaning that plaintiff did not assert them in opposition to the defendant's previous jurisdictional motion. The court's excuse for considering them was:

We may affirm on any ground. Thus, we need not confine our reasons for affirming to evidence adduced during proceedings on [defendant's] preliminary objections to jurisdiction.

Id. at 9 n.6 (citation and quotation marks omitted).

That's fine if the defendant bears the burden of proof, and is thus responsible for ensuring a complete jurisdictional record. But if the plaintiff bore the burden of proof in Hammons, then the plaintiff had the obligation to complete the jurisdictional record in a timely fashion, and it would not be proper for an appellate court to decide the jurisdictional issue on facts that the trial court did not have before it because the plaintiff failed to present them. Reliance on such after-the-fact facts is called "sandbagging," and is generally frowned upon. E.g., Com. v. Johnson, 456 A.2d 988, 996 (Pa. Super. 1983). We can't evaluate whether the extent of this Pennsylvania consulting was enough for this litigation tourist to remain in a Pennsylvania court under BMS, but we do believe that it was procedurally improper for an appellate court to consider it if the party being benefited bore (and thus failed to meet) the burden of proof on personal jurisdiction.

All this being said, we can't say with 100% certainty that the Hammons burden of proof ruling is erroneous – because neither the United States Supreme Court nor the Pennsylvania Supreme Court appears to have decided the burden-of-proof question in the specific context of personal jurisdiction. No controlling decision of a higher court was ignored – at least that we could find.

In researching this question, we (of course) looked at to United States Supreme Court and found very little. In Burger King Corp. v. Rudzewicz, the Court phrased the inquiry in the passive voice, "[o]nce it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered." 471 U.S. 462, 476 (1985). So did Asahi Metal Industries Co. v. Superior Court, 480 U.S. 102, 114, (1987) ("[w]hen minimum contacts have been established"). Such language neatly avoids the burden of proof question, and presumably arises because the Supreme Court is usually dealing with undisputed factual records.

We found even less precedent in the Pennsylvania Supreme Court – not even passive voice holdings.

However, review of Superior Court precedents shows that the Hammons position was not even the majority rule. A majority of Pennsylvania Superior Court decisions hold something like this:

Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it.

Schiavone v. Aveta, 41 A.3d 861, 865 (Pa. Super. 2012) (quoting Gaboury v. Gaboury, 988 A.2d 672, 675 (Pa. Super. 2009) (emphasis added), aff'd, 91 A.3d 1235 (Pa. 2014) (per curiam). See N.T. v. F.F., 118 A.3d 1130, 1134 (Pa. Super. 2015) (also quoting Gaboury); Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012) ("Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it."); Mendel v. Williams, 53 A.3d 810, 816 (Pa. Super. 2012) (quoting Schiavone); Taylor v. Fedra International, Ltd., 828 A.2d 378, 381 (Pa. Super. 2003) ("Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it."); Barr v. Barr, 749 A.2d 992, 994 (Pa. Super. 2000) (same); Grimes v. Wetzler, 749 A.2d 535, 540 (Pa. Super. 2000) ("Once the [defendants] supported their jurisdictional objection, the burden shifted to [plaintiff] to prove that there is statutory and constitutional support for the trial court's exercise of jurisdiction."); General Motors Acceptance Corp. v. Keller, 737 A.2d 279, 281 (Pa. Super. 1999) ("Once the movant has supported its jurisdictional objection, however, the burden shifts to the party asserting jurisdiction to prove that there is statutory and constitutional support for the court's exercise of in personam jurisdiction."); McCall v. Formu-3 International, Inc., 650 A.2d 903, 904 (Pa. Super. 1994) ("once the moving party has supported his objection to jurisdiction, the burden of proof shifts to the party asserting jurisdiction"); Rivello v. New Jersey Automobile Full Insurance Underwriting Ass'n, 615 A.2d 342, 343 (Pa. Super. 1994) ("once the defendant properly raises the issue of jurisdiction, the plaintiff has the burden of proving that jurisdiction is proper"); Derman v. Wilair Services, Inc., 590 A.2d 317, 319 (Pa. Super. 1991) (same); ("When, as here, a defendant properly raises an objection on the ground of a lack of in personam jurisdiction, the plaintiff has the burden of proving that the exercise of jurisdiction is permissible."); Babich v. Karsnak, 528 A.2d 649, 654 (Pa. Super. 1987) (same); Bergere v. Bergere, 527 A.2d 171, 173 (Pa. Super. 1987) ("When a defendant raises lack of personal jurisdiction, it becomes the plaintiff's burden to prove that the exercise of jurisdiction is permissible."). There are older cases, but you get the point....

We tried following the line of cases Hammons quoted to see how a contrary position originated. That wasn't hard. We started with the De Lage case, which Hammons quoted. The burden of proof didn't really matter in De Lage, since that case affirmed dismissal for lack of personal jurisdiction. 903 A.2d at 592. On the burden issue, De Lage in turn quoted (id. at 589-90) two cases: King v. Detroit Tool Co., 682 A.2d 313, 314 (Pa. Super. 1996) (for the proposition, "A defendant making a challenge to the court's personal jurisdiction has, as the moving party, the burden of supporting its objection to jurisdiction"), and Gall v. Hammer, 617 A.2d 23, 24 (Pa. Super. 1992). King cited Scoggins v. Scoggins, 555 A.2d 1314, 1317 (Pa. Super. 1989).

Taking Gall first, it's not any different in content from the string cite we have above – only in organization and placement. In the body of the opinion, Gall did indeed state, "When a defendant challenges the court's assertion of personal jurisdiction, that defendant bears the burden of supporting such objections to jurisdiction by presenting evidence." 617 A.2d at 24. That may involve a burden of production, but not the ultimate burden of proof. The "then what" proposition in Gall was dropped to a footnote. "The burden of proof only shifts to the plaintiff after the defendant has presented affidavits or other evidence in support of its preliminary objections challenging jurisdiction." Id. at 24 n.2. So Gall is not authority for holding that a defendant, alone, bears the burden of proof when personal jurisdiction is at issue. Nor is Scroggins. In that case, the court simply separated "if X" from "then Y." Here is the complete discussion in Scroggins, with the two propositions highlighted:

When a defendant wishes to challenge the court's exercise of in personam jurisdiction, he may do so by filing preliminary objections. As the moving party, the defendant, has the burden of supporting its objections to the court's jurisdiction.

Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff's evidence. The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations. Only when the moving party has properly raised the jurisdictional issue does the burden of proving jurisdiction fall upon the party asserting it. Where an essential factual issue arises from the pleadings as to the scope of a defendant's activities within the Commonwealth, the plaintiff has the right to depose defendant as to his activities within the Commonwealth.

555 A.2d at 1317-18 (multiple citations omitted) (emphasis added as described above).

Thus the Hammons holding that the defendant has the burden of proof − period – on personal jurisdiction is unwarranted even by Superior Court precedent. It confuses the initial burden of production of evidence with the ultimate burden of proof. Hammons, along with the case it quotes, misstates the burden of proof by omitting the holding of numerous prior Superior Court panels that, once the defendant puts on some evidence to support its jurisdictional position (which we're sure was done), then the burden switches to the plaintiff to establish jurisdiction as "the party asserting it." That makes practical sense as well. If plaintiffs didn't bear the burden of proof, why would they need jurisdictional discovery?

The majority Pennsylvania rule, that the plaintiff bears the ultimate burden of proof on personal jurisdiction, is also the federal rule. While the United States Supreme Court hasn't decided the issue, the Courts of Appeals have done so many times, and appear to be unanimous in imposing the ultimate burden of proving personal jurisdiction on the plaintiff asserting it. Here are a few of the many decisions (the search pulled up 881 cases):

To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must plead sufficient facts to support a reasonable inference that the defendant can be subjected to jurisdiction within the state. But where, as here, the parties submit affidavits to bolster their positions on the motion, and the district court relies on the evidence, the motion is in substance one for summary judgment. The plaintiff bears the burden of proof on the issue of personal jurisdiction, and must establish jurisdiction by a preponderance of the evidence at trial or when the court holds an evidentiary hearing.

Creative Calling Solutions, Inc. v. LF Beauty Ltd., 799 F.3d 975, 979 (8th Cir. 2015) (citations and quotation marks omitted).

It was [plaintiff's] burden to convince the district court that it had jurisdiction over the persons of the defendants. That is, [plaintiff] had to satisfy a threshold requirement, the prima facie establishment of jurisdiction. The plaintiff bears the burden of establishing a prima facie case of jurisdiction over the movant, non-resident defendant.

PVC Windoors, Inc. v. Babbitbay Beach Construction, N.V., 598 F.3d 802, 810 (11th Cir. 2010) (citations and quotation marks omitted).

The plaintiff bears the burden of establishing" personal jurisdiction, and though he need only make a prima facie case at the Rule 12(b)(2) stage, his burden escalates to preponderance of the evidence by the end of trial.

In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 888 F.3d 753, 778 (5th Cir. 2018) (citations and quotation marks omitted).

See also, e.g., John Crane, Inc. v. Shein Law Center, Ltd., 891 F.3d 692, 695 (7th Cir. 2018) ("When challenged, the plaintiff has the burden of proving personal jurisdiction.") (citation omitted); Scottsdale Capital Advisors Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir. 2018) ("a plaintiff must proffer evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction and may not rely on unsupported allegations") (citation and quotation marks omitted); Friedman v. Bloomberg L.P., 884 F.3d 83, 90 (2d Cir. 2017) ("The plaintiff bears the burden of demonstrating that the court has personal jurisdiction over each defendant.") (citation omitted); Anwar v. Dow Chemical Co., 876 F.3d 841, 847 (6th Cir. 2017) ("Plaintiffs have the burden of establishing that a district court can exercise jurisdiction over the defendant"); Morrill v. Scott Financial Corp., 873 F.3d 1136, 1141 (9th Cir. 2017) ("When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate."); Polar Electro Oy v. Suunto Oy, 829 F.3d 1343, 1348 (Fed. Cir. 2016) ("The plaintiff bears the burden of establishing minimum contacts"); Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016) ("a plaintiff must establish facts supporting jurisdiction over the defendant by a preponderance of the evidence") (citation omitted); Niemi v. Lasshofer, 770 F.3d 1331, 1347 (10th Cir. 2014) ("the plaintiff generally must establish, by a preponderance of the evidence, that personal jurisdiction exists") (citation and quotation marks omitted); Williams v. Romarm, SA, 756 F.3d 777, 785 (D.C. Cir. 2014) ("[plaintiffs] have the burden of establishing a factual basis for the court's exercise of personal jurisdiction over [defendant]"); Control Screening LLC v. Technological Application & Production Co., 687 F.3d 163, 167 (3d Cir. 2012) ("The plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction.") (citation and quotation marks omitted). That's a clean sweep. Every federal court of appeals imposes the ultimate burden of proof on plaintiffs in personal jurisdiction matters.

Finally, because of what personal jurisdiction represents, we think that the burden of proof should be on the plaintiff as a matter of policy. Personal jurisdiction is an essential element of due process of law. "Because '[a] state court's assertion of jurisdiction exposes defendants to the State's coercive power,' it is 'subject to review for compatibility with the Fourteenth Amendment's Due Process Clause." BMS, 137 S. Ct. at 1779 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918 (2011)). "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations." Burger King, 471 U.S. at 471-72. The constitution "operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants." Kulko v. Superior Court, 436 U.S. 84, 91 (1978). Restrictions on personal jurisdiction "are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States." Hanson v. Denckla, 357 U.S. 235, 251 (1958). Given the interests at stake, even if there were no precedent, we think that Due Process considerations mandate that plaintiffs demonstrate that their assertion of personal jurisdiction over defendants is constitutional.

In any event, the peculiar burden of proof ruling in Hammons seems to us to cry out for additional review, which should begin with the en banc Superior Court being given the opportunity to sort out the discrepancies in that court's panel decisions on this issue.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
James Beck
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions