Obtaining Jurisdictional Discovery

Its cold, so let us dream of conducting jurisdictional discovery in some place warm. What is jurisdictional discovery? When can you get it?

A sues B in Nevada. B moves to dismiss, arguing Nevada has no jurisdiction over it. Obviously no discovery has yet occurred in the case and A thinks B does have sufficient contacts with Nevada but A cannot show it yet. Welcome to jurisdictional discovery.

“[W]here issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13, 98 S.Ct. 2380, 2389 n. 13, 57 L. Ed. 2d 253 (1978). Laub v. U.S. Department of the Interior, 342 F.3d 1080, 1093 (9th Cir. 2003), states that “[a] district court is vested with broad discretion to permit or deny discovery, and a decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.” Id. Laub further states that “‘discovery should ordinarily be granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary.'” Id., 342 F.3d at 1093, quoting Butcher’s Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986). A plaintiff is not required to make a prima facie case of personal jurisdiction before it can obtain jurisdictional discovery. Liberty Media Holdings, LLC v. Letyagin, 925 F.Supp.2d 1114, 1120 (D.Nev. 2013), citing Calix Networks, Inc. v. Wi-Lan, Inc., 2010 U.S. Dist. LEXIS 97657, 2010 WL 3515759, *3 (N.D.Cal. 2010). Where further discovery on an issue might well demonstrate facts sufficient to constitute a basis for jurisdiction, it is an abuse of discretion to deny it. Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1135 (9th Cir. 2003).

Andes Indus. v. Chen Sun Lan, 2014 U.S. Dist. LEXIS 163571 (D. Nev. Nov. 19, 2014); see also Liberty Media Holdings, LLC v. Letyagin, 925 F. Supp. 2d 1114, 1120 (D. Nev. 2013).

In my practice I most commonly see this request when dealing with corporate structures. A sues B and C. B is the subsidiary with minimum contacts, C is the parent company without contacts. C moves to dismiss and then A “seek[s] to engage in extensive discovery in an effort to establish personal jurisdiction over [C], as the alter ego, agent or co-conspirator of the other defendants,” as occurred in Andes.

First, remember to be specific in the request for jurisidicitonal discovery. One sentence at the end of the brief stating “if the court believes jurisdiction is lacking, plaintiff requests jurisdictional discovery” is not going to cut it for similar reasons that it would not cut it for 56(f) relief. See Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78, 265 P.3d 698 (2011). Second, jurisdictional discovery is not automatic. Viega GmbH v. Dist. Ct., 130 Nev. Adv. Op. 40, 328 P.3d 1152, 1161 (2014) affirmed the denial of jurisdictional discovery where the plaintiff “has shown no more than a typical parent-subsidiary relationship, the separateness of which is a basic premise of corporate law.”