Splitting Hairs?: Court Finds Bristol-Myers Squibb Does Not Apply to Rule 23 Class Actions and Denies Motion to Dismiss Claims of Non-Resident Class Members in Nationwide TCPA Class Action

A few weeks ago, Judge Leigh Martin May in the Northern District of Georgia denied a Defendant’s Rule 12(b)(2) motion to dismiss brought on the basis that, under Bristol-Myers Squibb, the court lacked subject matter jurisdiction over non-resident class member’s claims. Dennis v. IDT Corp., No. 1:18-CV-2302-LMM, 2018 WL 5631102, at *1 (N.D. Ga. Oct. 18, 2018). Dennis is an interesting contrast to the Mussat case out of the Northern District of Illinois from earlier this week, where the court reached a contrary holding that was animated by concerns over the consistent and equal application of a defendant’s due process rights.

Breaking it down, the Dennis court’s holding that Bristol-Myers didn’t apply was based on three things.

The first – and driving – reason were the differences in the due process implications that the court saw between mass actions and Rule 23 class actions. The court reasoned that unlike in mass actions, a defendant in a class action is presented with a “unitary, coherent claim to which it need respond only with a unitary, coherent defense,” so the court perceived “no unfairness in hailing the defendant into court to answer to it in a forum that has specific jurisdiction over the defendant based on the representative’s claims.”

Second, the court was “concerned about the impracticality of conducting a specific jurisdiction analysis when the contacts of each absent class member are not yet known.” The court reasoned that, in a mass action, each plaintiff “is a real party in interest to the complaint,” which means that jurisdictional facts are “easily ascertainable.” The court was concerned that by limiting Plaintiff to a “Georgia-only class,” that there was a potential of excluding “non-resident class members who do have contacts with Defendants establishing specific jurisdiction,” and that sort of inquiry would be “difficult – if not impossible,” and “not customarily performed as part of a class action[.]” Now this is a very interesting part of the court’s decision that was based on a observation made by a New Jersey court that making these sorts of jurisdictional determinations involving unnamed class members prior to certification “would put the proverbial cart before the horse.” Thus, it seems like the court may have left the issue open to be raised again at the class certification stage, where the defendant may very well be able to establish that there are a predominance of individualized issues of jurisdiction amongst unnamed class members. Now wouldn’t that be interesting?

Third, the court found that Bristol-Myers was “grounded in federalism concerns” because the case involved a state court’s exercise of jurisdiction, and that those “concerns” over “a state overreaching its status as a coequal sovereign simply [do] not exist in a nationwide class action in federal court.”

And that’s quite the contrast. One the one hand, the Mussat court viewed a defendant’s due process rights as something to be applied consistently and equally. On the other, the Dennis court seems to view those rights on a spectrum, with varying degrees of due process safeguards depending on the forum, and the procedural vehicle through which a case is brought.

Reasonable minds can differ I suppose, but there doesn’t seem to be many compelling reasons to split hairs over a defendant’s due process rights like this.



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