PLIXER INTERNATIONAL INC v. SCRUTINIZER GMBH

Filing 20

ORDER ON PENDING MOTIONS re: 12 Motion to Dismiss for Lack of Jurisdiction; 16 Motion limited jurisdictional discovery By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PLIXER INTERNATIONAL, INC.,
PLAINTIFF
V.

SCRUTINIZER GMBH,
DEFENDANT

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CIVIL NO. 2:16-CV-578-DBH

ORDER ON PENDING MOTIONS
This case involves a Maine firm suing a German firm for federal trademark
infringement. The German defendant has moved to dismiss for lack of personal
jurisdiction.

The Maine plaintiff resists the motion and requests limited

jurisdictional discovery for a particular Rule-based purpose that I describe
below.
The Maine plaintiff has conceded that it cannot establish general
jurisdiction in Maine under any statute or rule.

It asserts only specific

jurisdiction, either as to the state of Maine or as to the United States as a whole,
under traditional doctrines of personal jurisdiction. As a result, I GRANT IN PART
the motion to dismiss, namely as to general jurisdiction. I RESERVE decision on
whether to dismiss as to specific jurisdiction pending resolution of the dispute I
am about to describe.
The Maine plaintiff asserts a basis for nationwide specific jurisdiction
under Fed. R. Civ. P. 4(k)(2) (a provision first added in 1993), which provides that

if a claim “arises under federal law” (the asserted trademark claim here does
arise under federal law), service of process “establishes personal jurisdiction” if
“(A) the defendant is not subject to jurisdiction in any state’s courts of general
jurisdiction; and (B) exercising jurisdiction is consistent with the United States
Constitution and laws.” According to the First Circuit, under this Rule, the
constitutional requirements for exercising personal jurisdiction are the same,
but the analysis is “performed with reference to the United States as a whole,
rather than with reference to a particular state.

The defendant’s national

contacts take center stage . . . .” United States v. Swiss American Bank, Ltd.,
191 F.3d 30, 36 (1st Cir. 1999), accord 274 F.3d 610, 618 (1st Cir. 2001).
On the Rule 4(k)(2) basis for personal jurisdiction, the German defendant
has conceded that the only issue is whether “jurisdiction based on [the
defendant’s] nationwide contacts is constitutional.” Def.’s Reply Mem. (ECF No.
17) at 2.1 The Maine plaintiff seeks limited jurisdictional discovery to explore the
German defendant’s contacts with the United States on this constitutional issue.
The threshold for limited jurisdictional discovery is “relatively low.” Blair
v. City of Worcester, 522 F.3d 105, 111 (1st Cir. 2008); accord Oppenheimer

The German defendant says explicitly that it does not contest that the plaintiff’s claim arises
under federal law, and that “personal jurisdiction is not available under any situation specific
federal statute.” Def.’s Reply Mem. (ECF No. 17) at 1. (The latter requirement comes from the
prima facie case requirement of United States v. Swiss American Bank, 191 F.3d 30, 41 (1st Cir.
1999).) The German defendant does not explicitly address (except by its silence in saying that
only the constitutional issue is at stake) Rule 4(k)(2)’s requirement that the defendant not be
subject to jurisdiction in any particular state court. That is unsurprising. After the Rule was
adopted in 1993, a commentator noted that singling out a particular state where it would be
subject to jurisdiction “is not a task the defendant can turn to happily. It might in effect amount
to a concession of jurisdiction in a designated state. Perhaps the defendant had best confine its
efforts to trying to show that even its presumably national contacts in the case don’t suffice for
jurisdiction.” David D. Siegel, The New (Dec. 1, 1993) Rule 4 of the Federal Rules of Civil
Procedure: Changes in Summons Service and Personal Jurisdiction, 152 F.R.D. 249, 252-53
(1994).
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Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (“discovery is available to
ascertain the facts bearing on such issues,” enumerating jurisdiction as one
such issue). If a plaintiff makes out a colorable case for personal jurisdiction,
the district court has broad discretion to determine whether limited discovery
should be allowed. Swiss American Bank, 274 F.3d at 625-26. I conclude that
here the Maine plaintiff has surmounted the threshold for limited discovery
addressed to the federal constitutional issues of Rule 4(k)(2), namely a colorable
case of defendant contacts with the United States as a whole.
Accordingly, the motion to dismiss is GRANTED

IN PART

as to general

jurisdiction and otherwise action is DEFERRED.
The motion for limited jurisdictional discovery is GRANTED.
The lawyers for the parties shall meet and confer to reach agreement on
the limited jurisdictional discovery. Failing such agreement by June 4, 2017,
they shall submit their competing proposals to the court by June 11, 2017, and
either I or the Magistrate Judge shall resolve them.
SO ORDERED.
DATED THIS 5TH DAY OF MAY, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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