Michael Molock v. Whole Foods Market, Inc. ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2019 Decided March 10, 2020
No. 18-7162
MICHAEL MOLOCK, ET AL.,
APPELLEES
v.
WHOLE FOODS MARKET GROUP, INC.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-02483)
Gregory J. Casas argued the cause and filed the briefs for
appellant.
Steven P. Lehotsky, Nicole A. Saharsky, and Andrew J.
Pincus were on the brief for amici curiae the Chamber of
Commerce of the United States of America, et al. in support of
appellant.
Richard A. Samp was on the brief for amicus curiae
Washington Legal Foundation in support of appellant.
Scott L. Nelson and Allison M. Zieve were on the brief for
amicus curiae Public Citizen, Inc. in support of plaintiffs-
2
appellees and affirmance.
Matthew W.H. Wessler argued the cause for appellees.
With him on the briefs were Jonathan E. Taylor and Salvatore
J. Zambri.
Before: TATEL and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Senior Circuit Judge
SILBERMAN.
TATEL, Circuit Judge: In this not yet certified class action,
the defendant moved to dismiss all nonresident putative class
members for lack of personal jurisdiction. The district court
denied the motion on the merits. We affirm, but on alternative
grounds. Absent class certification, putative class members are
not parties before a court, rendering the defendant’s motion
premature.
I.
Whole Foods, a Delaware corporation headquartered in
Texas, allegedly manipulated its incentive-based bonus
program, resulting in employees losing wages otherwise owed
to them. Current and former Whole Foods employees (the
Employees) initiated this diversity action in the District Court
for the District of Columbia to recover the purportedly lost
wages. The Employees brought various state law claims and
sought to represent a putative class of “past and present
employees of Whole Foods.” Second Am. Class Action Compl.
25.
3
Whole Foods moved to dismiss on several grounds, only
one of which is relevant here: it argued that the district court
lacked personal jurisdiction to entertain the claims of the
nonresident putative class members. The district court denied
the motion and certified its order for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b). Whole Foods then filed a
petition for leave to appeal, which this court granted.
We review the district court’s denial of Whole Foods’
motion to dismiss de novo. See Liff v. Office of Inspector
General for U.S. Department of Labor, 881 F.3d 912, 918
(D.C. Cir. 2018) (“We review de novo the District Court’s legal
conclusions denying a motion to dismiss.”).
II.
Here and in the district court, the parties debate an issue
left unresolved by the Supreme Court’s recent decision in
Bristol-Myers Squibb Co. v. Superior Court of California, 137
S. Ct. 1773 (2017). There, a group of six hundred plaintiffs
brought a mass tort action in California state court against the
pharmaceutical firm Bristol-Myers Squibb. Id. at 1778. All
plaintiffs asserted California state law claims, but only eighty-
six were California residents; the rest resided elsewhere. Id.The firm moved to quash service of summons on the
nonresidents’ claims, arguing that the California court lacked
specific jurisdiction to hear those claims. Id. The Supreme
Court agreed, explaining that “[i]n order for a state court to
exercise specific jurisdiction, the suit must arise out of or relate
to the defendant’s contacts with the forum,” meaning “there
must be an affiliation between the forum and the underlying
controversy, principally, an activity or an occurrence that takes
place in the forum State and is therefore subject to the State’s
regulation.” Id. at 1780 (internal citations, alterations,
emphasis, and quotation marks omitted). Applying that
4
standard, the Court found that the nonresidents’ claims lacked
an “adequate link” with California to justify the exercise of
specific jurisdiction. Id. at 1781.
Significantly for our purpose, the Court carefully limited
its holding: “since our decision concerns the due process limits
on the exercise of specific jurisdiction by a State, we leave open
the question whether the Fifth Amendment imposes the same
restrictions on the exercise of personal jurisdiction by a federal
court.” Id. at 1783–84 (citing Omni Capital International,
Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987)).
Justice Sotomayor, dissenting, further explained that “the
Court today does not confront whether its opinion here would
also apply to a class action in which a plaintiff injured in the
forum State seeks to represent a nationwide class of plaintiffs,
not all of whom were injured there.” Bristol-Myers, 137 S. Ct.
at 1789 n.4 (Sotomayor, J., dissenting). These are the issues the
parties address in their briefs.
Whole Foods argues that because the district court is
sitting in diversity, its personal jurisdiction is conterminous
with that of a District of Columbia court. See Helmer v.
Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004) (“In a diversity
case, the federal district court’s personal jurisdiction over the
defendant is coextensive with that of a District of Columbia
court.”). So, Whole Foods contends, the district court should
have dismissed the nonresident putative class members
because a District of Columbia court would lack both general
and specific personal jurisdiction over their claims. It would
lack general jurisdiction because Whole Foods, a Delaware
corporation headquartered in Texas, is not “at home” in the
District of Columbia. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 929 (2011). And it would lack
specific jurisdiction because the claims of the nonresident
putative class members do not “arise out of or relate to” Whole
5
Foods’ contacts with the District, Bristol-Myers, 137 S. Ct. at
1780 (internal quotation marks and alterations omitted); rather,
they stem from Whole Foods’ conduct at out-of-District stores.
The Employees take a different view. Acknowledging that
a federal court sitting in diversity typically exercises personal
jurisdiction conterminously with that of the state in which it
sits, they argue that class actions present an exception to this
general rule. According to them, Federal Rule of Civil
Procedure 23 permits a federal court sitting in diversity to
exercise personal jurisdiction over unnamed, nonresident class
members’ claims, even if a state court could not.
In the alternative, the Employees argue that the district
court should have denied Whole Foods’ motion to dismiss, not
on the merits, but on the ground that it was premature because
prior to class certification putative class members are not
parties to the action. On this point, we agree. See United
States v. Lawson, 410 F.3d 735, 740 n.4 (D.C. Cir. 2005)
(“[W]e may affirm on grounds other than those presented and
relied on below.”); United States v. Garrett, 720 F.2d 705, 710
(D.C. Cir. 1983) (“It is well settled that in reviewing the
decision of a lower court, that decision must be affirmed if the
result is correct although the lower court relied upon a wrong
ground or gave a wrong reason.” (internal quotation marks and
alterations omitted)).
In Smith v. Bayer Corp., 564 U.S. 299 (2011), the Supreme
Court explained that “[i]n general, a party to litigation is one
by or against whom a lawsuit is brought or one who becomes a
party by intervention, substitution, or third-party practice.” Id.
at 313 (internal quotation marks, citations, and alterations
omitted). “[T]he label ‘party,’” the Court observed in Devlin v.
Scardelletti, 536 U.S. 1 (2002), “does not indicate an absolute
characteristic, but rather a conclusion about the applicability of
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various procedural rules that may differ based on context.” Id.
at 10.
For example, in certified class actions, “[n]onnamed class
members . . . may be parties for some purposes and not for
others.” Id. at 9–10. In Devlin, the Court held that unnamed
class members are “considered . . . ‘part[ies]’ for the purposes
of appealing the approval of [a] settlement.” Id. at 7. Unnamed
class members are also parties for purposes of claim
preclusion: “a judgment in a properly entertained class action
is binding on class members in any subsequent litigation.”
Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867,
874 (1984). But unnamed class members are treated as
nonparties for other purposes, including jurisdictional ones. In
diversity suits, for example, unnamed class members are
nonparties for the complete diversity requirement of 28 U.S.C.
§ 1332. See Devlin, 536 U.S. at 10 (“The rule that nonnamed
class members cannot defeat complete diversity is . . . justified
by the goals of class action litigation.”). Lower courts also
generally agree that unnamed class members are not parties for
purposes of consenting to the jurisdiction of a magistrate judge
under 28 U.S.C. § 636(c). See Koby v. ARS National Services,
Inc., 846 F.3d 1071, 1076 (9th Cir. 2017) (collecting cases).
By contrast, putative class members—at issue in this
case—are always treated as nonparties. The Supreme Court
made this clear in Smith. There, a federal district court enjoined
a state court from hearing a class certification motion because
the federal court “had earlier denied a motion to certify a class
in a related case, brought by a different plaintiff against the
same defendant alleging similar claims.” Smith, 564 U.S. at
302. The injunction was proper, the district court reasoned,
because Smith—the party seeking class certification in state
court—was an unnamed member of the putative federal class
action and thus barred by claim preclusion from seeking class
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certification in the similar state action. Id. at 313. The Supreme
Court disagreed, holding that “the mere proposal of a class . . .
could not bind persons who were not parties.” Id. at 318. “[N]o
one,” the Court declared, “‘advance[s] the novel and surely
erroneous argument that a nonnamed class member is a party
to the class-action litigation before the class is certified.’” Id.
at 313 (quoting Devlin, 536 U.S. at 16 n.1 (Scalia, J.,
dissenting)). The Court held that, absent class certification,
Smith was not a party to the federal action and so could not be
bound by the federal district court’s decision. Id. at 314–15; see
also Standard Fire Insurance Co. v. Knowles, 568 U.S. 588,
593 (2013) (“A plaintiff who files a proposed class action
cannot legally bind members of the proposed class before the
class is certified.”).
Whole Foods argues that in American Pipe &
Construction Co. v. Utah, 414 U.S. 538 (1974), the Supreme
Court held that putative class members are parties (at least) for
the purpose of tolling statutes of limitations. Id. at 551. In
Smith, however, the Court expressly repudiated this
interpretation of American Pipe and its progeny, explaining
that those decisions were “grounded in policies of judicial
administration” and “demonstrate only that a person not a party
to a class suit may receive certain benefits (such as the tolling
of a limitations period) related to that proceeding.” 564 U.S. at
313 n.10. Even for the purpose of tolling limitations periods,
then, putative class members are not parties.
Putative class members become parties to an action—and
thus subject to dismissal—only after class certification. See In
re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1245
(11th Cir. 2006) (“The granting of class certification
under Rule 23 authorizes a district court to exercise personal
jurisdiction over unnamed class members who otherwise might
be immune to the court’s power.”). It is class certification that
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brings unnamed class members into the action and triggers due
process limitations on a court’s exercise of personal
jurisdiction over their claims. See Gibson v. Chrysler Corp.,
261 F.3d 927, 940 (9th Cir. 2001) (“[A] class action, when
filed, includes only the claims of the named plaintiff or
plaintiffs. The claims of unnamed class members are added to
the action later, when the action is certified as a class
under Rule 23.”). Any decision purporting to dismiss putative
class members before that point would be purely advisory. Cf.
Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[Courts’]
judgments must resolve a real and substantial controversy
admitting of specific relief through a decree of a conclusive
character, as distinguished from an opinion advising what the
law would be upon a hypothetical state of facts.” (internal
quotation marks omitted)).
To be clear, this rule is not peculiar to class actions; rather,
it is merely a specific application of the more general principle
that personal jurisdiction entails a court’s “power over the
parties before it.” Lightfoot v. Cendant Mortgage Corp., 137 S.
Ct. 553, 562 (2017). Nonparties are, by definition, not “parties
before [a court].” Id.; see In re Checking Account Overdraft
Litigation, 780 F.3d 1031, 1037 (11th Cir. 2015) (“[T]he
unnamed putative class members are not yet before the
court.”). Motions to dismiss nonparties for lack of personal
jurisdiction are thus premature—not to mention “novel and
surely erroneous.” Smith, 564 U.S. at 313 (internal citations
and quotation marks omitted).
Because the class in this case has yet to be certified, Whole
Foods’ motion to dismiss the putative class members is
premature. Only after the putative class members are added to
the action—that is, “when the action is certified as a class
under Rule 23,” Gibson, 261 F.3d at 940—should the district
court entertain Whole Foods’s motion to dismiss the nonnamed
9
class members.
Whole Foods insists that the Employees forfeited this
argument by failing to raise it in the district court. True, the
Employees did not argue, as they do here, that the district court
should have denied Whole Foods’ motion to dismiss because
putative class members are nonparties; instead, they focused
primarily on the scope of district court authority over
nonresident class members post-certification. And it is also true
that “issues and legal theories not asserted in the district court
ordinarily will not be heard on appeal.” Prime Time
International Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir.
2010) (internal quotation marks omitted).
We may, however, “consider an issue antecedent to and
ultimately dispositive of the dispute before” us, even one “the
parties fail to identify and brief.” U.S. National Bank of
Oregon v. Independent Insurance Agents of America, Inc., 508
U.S. 439, 447 (1993) (internal quotation marks and alterations
omitted). Such an exception to the forfeiture rule squarely
applies here because the party status of putative class members
both precedes the question of personal jurisdiction and disposes
of this appeal. And the exception is particularly fitting where,
as here, the issue is a “straightforward legal question,” which
“both parties have fully addressed.” Prime Time, 599 F.3d at
686.
Whole Foods’ remaining arguments are without merit.
First, Whole Foods asserts that even if putative class
members are “nominally ‘absent’ before certification, their
claims . . . are not.” Appellant’s Reply Br. 4. Accordingly,
Whole Foods says, it “cannot be subject to specific jurisdiction
related to the unnamed putative class members’ claims,
regardless of the ‘party’ status of absent class members.” Id.Whole Foods provides scant support for this assertion, citing
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only stray Supreme Court language to the effect that a class
complaint raises the specter of “classwide liability,” United
Airlines, Inc. v. McDonald, 432 U.S. 385, 395 (1977), and
requires defendants “to preserve evidence and witnesses
respecting the claims of all the members of the class,” Crown,
Cork & Seal Co. v. Parker, 462 U.S. 345, 353 (1983). These
decisions stand for the unremarkable proposition that class
allegations put a defendant on notice as to the scope of its
potential liability and evidentiary obligations. But prior to class
certification, the potential class and its potential members and
their potential claims are just that: potentials. Personal
jurisdiction need not be established over these hypothetical
parties and claims because they are not “before [the court].”
Lightfoot, 137 S. Ct. at 562. More to the point, Smith forecloses
Whole Foods’ argument: putative class members and their
claims are joined to the action only after the class is certified.
564 U.S. at 318.
Next, Whole Foods argues that personal jurisdiction issues
must be “addressed as soon as possible,” even prior to class
certification. Appellant’s Reply Br. 19–20. But the Supreme
Court has suggested just the opposite. In Amchem Products,
Inc. v. Windsor, 521 U.S. 591 (1997), the Court declined to
address whether certain putative class members’ claims “me[t]
the then-current amount-in-controversy requirement . . .
specified for federal-court jurisdiction based upon diversity of
citizenship” because the jurisdictional defect “would not exist
but for . . . class-action certification.” Id. at 612 (internal
quotation marks and alterations omitted). The Court explained
that where certification issues are “logically antecedent to the
existence of any Article III issues, it is appropriate to reach
them”—that is, the certification issues—“first.” Id. at 612; see
also Ortiz v. Fibreboard Corp., 527 U.S. 815, 830–31 (1999)
(taking a similar approach). The same logic applies here:
whether the putative nonresident class members are parties to
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the action is “logically antecedent” to whether the court has
authority to exercise personal jurisdiction over them.
Finally, Whole Foods complains about the burdens of class
discovery. But concerns about discovery costs must yield to
Supreme Court precedent, which makes clear that putative
class members are nonparties prior to class certification. Smith,
564 U.S. at 313. Moreover, “district courts have broad
discretion in structuring discovery” to limit unnecessary or
overly burdensome requests, including by bifurcating class and
merits discovery. Hussain v. Nicholson, 435 F.3d 359, 363
(D.C. Cir. 2006) (internal quotation marks omitted). The
dissent’s concern that plaintiffs could receive extensive class
discovery even if a hypothetical Supreme Court decision
resolved the Bristol-Myers issue in defendants’ favor is
therefore misplaced. See Dissenting Op. at 7–8. We review
discovery rulings for abuse of discretion, Hussain, 435 F.3d at
363, and a district court would necessarily abuse its discretion
by permitting nationwide discovery on claims that Supreme
Court precedent squarely foreclosed.
Our dissenting colleague further contends that the whole
discussion of putative class members’ party status is beside the
point because “Whole Foods did not move to dismiss
nonresident putative class members; it moved to dismiss the
named plaintiffs’ claim to represent those putative class
members.” Dissenting Op. at 6. We respectfully disagree.
Before the district court, Whole Foods asserted that the
Employees alleged “no facts to support personal jurisdiction
over . . . non-resident putative-class members” and called on
the district court to “limit the adjudication of the remaining
Plaintiffs’ claims as described above.” Mem. of Points and
Authorities in Support of Defs.’ Mot. to Dismiss Pls.’ Second
Am. Compl. 13. Although unconventionally framed, Whole
12
Foods’ papers are best read as moving to dismiss the
nonresident putative class members’ claims for lack of personal
jurisdiction, not as challenging the Employees’ right to
represent those claims consistent with Federal Rule of Civil
Procedure 23; indeed, Whole Foods’ motion to dismiss never
even cites Rule 23. Such a reading is bolstered by the fact that
elsewhere in its motion Whole Foods moved to dismiss “the
claims of purported absent class members” on other grounds,
i.e., lack of standing. Defs.’ Mot. to Dismiss Pls.’ Second Am.
Compl. 2. But any ambiguity over Whole Foods’ position
before the district court is resolved by the fact that, before this
court, Whole Foods expressly states that it “moved to dismiss
claims asserted on behalf of nonresident putative-class
members because there were no facts to support personal
jurisdiction as to those nonresidents’ claims.” Appellant’s Br.
7. Maintaining that position on appeal, Whole Foods insists
that “[t]he claims of all unnamed putative class members
whose claims are unrelated to Whole Foods’ operations in the
District of Columbia should be dismissed.” Appellant’s Br. 38.
We take Whole Foods at its word that it sought, and continues
to seek, dismissal of the nonresident putative class members’
claims for lack of personal jurisdiction.
III.
For the reasons given above, we affirm the district court’s
denial of Whole Foods’ motion to dismiss the nonresident
putative class members and remand to the district court for
further proceedings consistent with this opinion.
So ordered.
SILBERMAN, Senior Circuit Judge, dissenting: The majority
disposes of this appeal by concluding that Whole Foods’ motion
to dismiss was premature, notwithstanding the plaintiffs’
repeated failure to raise the issue to the district court. I would
not excuse that forfeiture. But even if we did, the majority’s
conclusion rests on the flawed premise that Whole Foods sought
to dismiss the nonresident putative class “members” and “their
claims” for lack of personal jurisdiction. Whole Foods did not
actually do that. Whole Foods moved to dismiss the claims in
the named plaintiffs’ complaint, contending that Bristol-Myers
required that those claims “should be limited to alleged injuries
occurring within the District of Columbia, pursuant to Federal
Rule of Civil Procedure 12(b)(2).” R. Doc. 30, at 1. That is a
run-of-the-mill attack on class certification at the pleading stage,
and such a motion was not premature. Because I would reach
the Bristol-Myers question and hold that class claims unrelated
to Whole Foods’ contacts with the District of Columbia cannot
proceed, I respectfully dissent.
I.
A.
As noted, the majority decides an issue—whether Whole
Foods’ motion to dismiss for lack of personal jurisdiction was
premature—notwithstanding that the issue was forfeited by the
plaintiffs by never raising it below. Recognizing this is a
violation of our normal procedure, the majority invokes the
Supreme Court’s decision in U.S. National Bank of Oregon v.
Independent Insurance Agents of America, Inc., 508 U.S. 439(1993). As I have written before, that opinion, justifying a
federal court’s discretion to reach out and decide a forfeited or
waived issue, is a serious attack on fundamental notions of
federal judicial restraint. See United States v. Moore, 110 F.3d
99, 101–02 (D.C. Cir. 1997) (Silberman, J., dissenting from the
denial of rehearing en banc). After all, the very notion of
deciding a case or controversy necessarily implies resolving the
2
contentions of the parties before the court—not gratifying the
musings of judges acting like law professors or worse yet,
activist policymakers. Careful observers of Supreme Court
opinions will recognize Independent Insurance Agents as an
indication that the Court, unfortunately, sees itself not as a
tribunal limited to actual cases, but rather one that, all too often,
regards its role as a body that decides legal issues—somewhat
like the Supreme Judicial Court of Massachusetts, which is
authorized to deliver advisory opinions.1
Since the Supreme Court did not set forth any standard that
would govern this discretionary authority—it would’ve been
analytically impossible—it is available for any federal court to
exercise when it wishes a certain result. That, of course,
undermines perhaps the most important governing concept of
judicial decisionmaking, i.e., that the process be fair. Allowing
a court to reach a ground not preserved by the parties is
dreadfully unfair to the party against whom that discretion is
brandished. That is why I will never rely on Independent
Insurance Agents in any of my opinions.
B.
Since my colleagues rely on Independent Insurance Agents
to reach the issue of prematurity, I feel obliged to demonstrate
why, even if the issue had been properly raised, the plaintiffs’
argument should be rejected. The majority opinion is based on
the premise that Whole Foods’ Rule 12(b)(2) motion to dismiss
for lack of personal jurisdiction necessarily was aimed at
dismissing the putative class “members” and “their claims” as
parties. Op. at 2, 4, 7, 8, 10, 12. Putative class members are not
1
I have often thought that the Supreme Court would have greater
impact on the lower courts if its focus was on the way it decides cases
rather than what it decides.
3
“parties” to the action for any purpose, so the reasoning goes,
thus before class certification there are no parties (other than
those named) for a district court to dismiss. I think the key
premise is false.2
Whole Foods moved to dismiss the “claims” in the
plaintiffs’ “class action complaint,” and contended that whatever
claims remained “should be limited to alleged injuries occurring
within the District of Columbia, pursuant to Federal Rule of
Civil Procedure 12(b)(2).” R. Doc. 30, at 1. The motion did not
ask for dismissal of any person, let alone the putative class
members. Nor did the motion specify that the “claims” it
challenged for lack of personal jurisdiction were those of the
putative class members as opposed to those of the named
plaintiffs.3 Instead, on the first occasion Whole Foods had to
respond to the plaintiffs’ new argument—in its reply brief in this
court—Whole Foods describes itself as “challeng[ing]” “class
2
The majority also states that an order granting Whole Foods’
motion would be “purely advisory,” raising the specter of an Article
III problem. Op. at 8. But that is a chimera. What is outside the
power of federal courts that lack subject matter jurisdiction is
adjudication on the merits. In re Papandreou, 139 F.3d 247, 255
(D.C. Cir. 1998); see Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 431 (2007). A court that dismisses claims or
persons for lack of personal jurisdiction makes no assumption of that
sort of law-declaring power, see Papandreou, 139 F.3d at 255; it does
the exact opposite. The majority’s citation to Preiser v. Newkirk, 422
U.S. 395 (1975), is appropriately halfhearted because the Court in
Preiser was faced with a merits question. See id. at 400–01.
3
The majority notes the use of different language in a different
part of the motion to dismiss, and reasons that Whole Foods probably
intended the same meaning in the portion at issue. Op. at 12. One
might just as easily come to the opposite conclusion, and that would
certainly be a fairer reading of the motion.
4
definitions” and “class allegations.” Appellant’s Reply Br. at
21.4 And critically, Whole Foods explains in its reply brief that
insofar as the motion to dismiss did target the claims of putative
class members, Whole Foods sought to do so independent of the
putative class members themselves. The putative class
members’ claims are nominally present in the case, Whole
Foods argues, even if the class members themselves are not.
Appellant’s Reply Br. at 4.
The majority acknowledges the latter point, yet it contends
that there is scant authority for Whole Foods’ attempt to dismiss
claims without dismissing parties. But my colleagues overlook
the fundamental proposition that a named plaintiff attempting to
bring a class action has two legally cognizable interests. The
first is his underlying claim on the merits; the second is “the
claim that he is entitled to represent a class.” Richards v. Delta
Air Lines, Inc., 453 F.3d 525, 528 (D.C. Cir. 2006) (quoting U.S.
Parole Comm’n v. Geraghty, 445 U.S. 388, 402 (1980)). That
latter claim of entitlement is what courts adjudicate when
considering motions for class certification. And if, as Whole
Foods argues, its own challenge is aimed at claims independent
of parties, that necessarily implies it is challenging the named
plaintiffs’ alleged entitlement to bring those claims on behalf of
the putative class members. In other words, taking aim at the
“claims asserted on behalf of nonresident putative class
members,” Op. at 12 (quoting Appellant’s Br. at 7), is just a
4
Acknowledging that the motion to dismiss is “unconventionally
framed,” the majority supports its reading with language from Whole
Foods’ opening brief on appeal. Op. at 11–12. That is doubly unfair.
Not only must Whole Foods address an issue for the first time on
appeal, but also it is penalized for the imprecise language it used
before the characterization of the motion to dismiss was even at issue.
If we are to consult any of Whole Foods’ filings beyond the motion
itself here, it should be the reply brief.
5
shorthand for attacking the named plaintiffs’ ability to pursue
those claims. The majority concedes that a district court would
abuse its discretion by permitting nationwide discovery “on
claims that Supreme Court precedent squarely foreclosed,” Op.
at 11 (emphasis added), so the majority implicitly also concedes
that those “claims” exist independent of the putative class
members before class certification.
Moreover, a motion challenging class representation need
not wait until the plaintiffs move for class certification. See Fed.
R. Civ. P. 23(c)(1)(A). The Supreme Court has recognized that
“[s]ometimes the issues are plain enough from the pleadings to
determine whether the interests of the absent parties are fairly
encompassed within the named plaintiff’s claim.” Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 160 (1982). If a named
plaintiff’s claim of entitlement to represent a class is defective
as a matter of law, for example, because the court would lack
personal jurisdiction over the defendant with respect to class
claims, a defendant’s motion to dismiss or narrow the
representative claim on those grounds is not premature.5
Granting such a motion would be the “functional equivalent” of
denying a motion for class certification, and that decision would
be a candidate for interlocutory appeal. Scott v. Family Dollar
Stores, Inc., 733 F.3d 105, 110 n.2 (4th Cir. 2013); see Microsoft
Corp. v. Baker, 137 S. Ct. 1702, 1711 n.7 (2017). Whole Foods’
motion attacking the named plaintiffs’ representative claim thus
was not premature.
To be sure, as the majority points out, Whole Foods did not
cite Rule 23 in its motion to dismiss. But that is of little
5
Two of our sister circuits permit pleading-stage challenges to
class allegations on motions that invoke Rule 12(b)(6). See McCrary
v. Stifel, Nicolaus & Co., 687 F.3d 1052, 1059 (8th Cir. 2012); John
v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 444–45 (5th Cir. 2007).
6
significance. Whole Foods understandably relied on Rule
12(b)(2), which permits a party to “assert the . . . defense[]” of
“lack of personal jurisdiction.” If as a matter of law the named
plaintiffs seek to bring claims in a representative capacity over
which the district court lacks personal jurisdiction, the court’s
focus will not be on the requirements set out in Rule 23(a) and
(b).
The majority’s chief authority, Smith v. Bayer Corp., 564
U.S. 299 (2011), is quite beside the point. In Smith, the
Supreme Court held that members of a failed proposed class are
not “parties” for purposes of claim preclusion and therefore are
not bound in later proceedings. See id. at 312–15. Smith may
or may not settle the party status of putative class members for
personal jurisdiction purposes,6 but whether the putative class
members are “parties” does not matter in this case: as I have
explained, Whole Foods did not move to dismiss nonresident
putative class members; it moved to dismiss the named
plaintiffs’ claim to represent those putative class members.
Smith says nothing that would cast doubt on a district court’s
authority to rule on a named plaintiff’s representative claim at
the pleading stage. If anything, Smith removes a potential
concern about pleading-stage challenges to claims of class
entitlement since, in the absence of certification, putative class
members will not be precluded by anything the court does. Id.In this case, for example, if Whole Foods were to succeed on its
6
Smith did not purport to change the principle from Devlin v.
Scardelletti, 536 U.S. 1 (2002), that the party status of unnamed class
members “may differ based on context.” Id. at 10. The more
sweeping language in Smith upon which my colleagues repeatedly rely
thus is arguably dictum. This is a minor point, however, since my
principal contention is that the party status of putative class members
is irrelevant to whether Whole Foods’ motion was premature.
7
motion, nonresident putative class members would not be issue
precluded on the question of personal jurisdiction in future suits.
I note that numerous district courts—not seeing Smith as a
barrier—have ruled on the applicability of Bristol-Myers to class
actions on motions invoking Rule 12(b)(2).7 The district court
(and the plaintiffs, for that matter) didn’t bat an eye at Whole
Foods’ motion below because it was an appropriate pleading-
stage challenge to the plaintiffs’ class allegations.
If the majority were correct that such motions are
premature, then a hypothetical named plaintiff would be entitled
to extensive class discovery even after an on-point decision by
7
See, e.g., Leppert v. Champion Petfoods USA Inc., No. 18 C
4347, 2019 WL 216616 (N.D. Ill. Jan. 16, 2019); Lee v. Branch
Banking & Tr. Co., No. 18-21876-Civ-Scola, 2018 WL 5633995 (S.D.
Fla. Oct. 31, 2018); Morgan v. U.S. Express, Inc., No. 3:17-cv-00085,
2018 WL 3580775 (W.D. Va. July 25, 2018); Becker v. HBN Media,
Inc., 314 F. Supp. 3d 1342 (S.D. Fla. 2018); Chavez v. Church &
Dwight Co., No. 17 C 1948, 2018 WL 2238191 (N.D. Ill. May 16,
2018) (evaluating Rule 12(b)(6) motion under Rule 12(b)(2)); Tickling
Keys, Inc. v. Transamerica Fin. Advisors, Inc., 305 F. Supp. 3d 1342(M.D. Fla. 2018); Sanchez v. Launch Tech. Workforce Sols., LLC, 297
F. Supp. 3d 1360 (N.D. Ga. 2018); McDonnell v. Nature’s Way
Prods., LLC, No. 16 C 5011, 2017 WL 4864910 (N.D. Ill. Oct. 26,
2017); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., No. 17-cv-
00564, 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017).
Other courts have considered the issue prior to certification on
motions to strike allegations from the complaint. See, e.g., Jones v.
Depuy Synthes Prods., Inc., 330 F.R.D. 298 (N.D. Ala. 2018); Al Haj
v. Pfizer Inc., 338 F. Supp. 3d 815 (N.D. Ill. 2018). Whole Foods
understandably invoked Rule 12(b)(2). But even if another Rule were
a better fit, the named plaintiffs never objected to Whole Foods’ use
of Rule 12(b)(2), and I see no meaningful difference between the
various plausible options in this context.
8
the Supreme Court concluding, as I do, that the principles in
Bristol-Myers extend to class actions. In this case, for instance,
the district court noted that “[d]iscovery . . . in its present form,
promises to be drawn out, complex, and expensive.” The
plaintiffs intend to take discovery of payroll records from more
than 200 Whole Foods grocery stores in order to certify the
nationwide class. And if the alleged misconduct appears to
extend to related operating companies, the plaintiffs intend to
amend their complaint to expand the class to include employees
of nearly 300 other stores. Then comes class discovery about
those stores. If the named plaintiffs’ nationwide class allegation
is dismissed, however, that number shrinks to the five stores
operated by Whole Foods in the District. As the district court
put it, “[t]he difference in scope of these two scenarios need not
be belabored.” And, importantly, there may be incentives for
plaintiffs to pursue that discovery effort even if the ultimate
legal issue were settled.
The majority appears to concede that if a district court
permitted extensive discovery in the face of a Supreme Court
decision answering the certified question the way I do, it would
constitute an abuse of discretion as a matter of law. But are not
courts of appeals equally obliged to decide questions of law?
There is no relevant difference, in other words, between a prior
Supreme Court decision extending Bristol-Myers to class actions
and a decision by this court to that effect. And why should the
Bristol-Myers question be dealt with during discovery instead of
at the pleading stage? If Whole Foods were to preserve and
appeal a Bristol-Myers-based objection to the district court’s
nationwide discovery rulings, and if we agreed that
Bristol-Myers applied, we would hold, like the majority says,
that the district court abused its discretion by making an error of
law. See Koch v. Cox, 489 F.3d 384, 388 (D.C. Cir. 2007). The
majority thus simply has moved the district court’s
consideration of the effect of governing personal jurisdiction
9
rules on certain “claims” to the class discovery phase. Again I
ask, what are these “claims,” if not those of putative class
members, used as a shorthand for the representative claim of the
named plaintiffs? The majority does not say, but whatever the
characterization of those claims, if a court can evaluate them for
personal jurisdiction purposes at discovery, it can do the same
at the pleading stage. And the latter is more appropriate in any
event because, as I explained, an order granting Whole Foods’
motion would be the functional equivalent of a denial of class
certification and thus would be a candidate for interlocutory
appeal. See Scott, 733 F.3d at 110 n.2; Microsoft Corp., 137 S.
Ct. at 1711 n.7.
II.
The issue that actually divided the parties below is what
effect, if any, the Supreme Court’s decision in Bristol-Myers
Squibb Co. v. Superior Court of California, 137 S. Ct. 1773(2017), has on class actions in federal courts. That question is
the subject of the order that the district court certified. Whole
Foods asserts that after Bristol-Myers, a class
action—presumably in both state and federal court—cannot
proceed against a defendant insofar as the suit includes claims
of absent class members over which the court lacks personal
jurisdiction. The plaintiffs, on the other hand, argue that Bristol-
Myers doesn’t apply to class actions at all, and that even if it
does in state courts, it is inapplicable in this case because the
Fifth Amendment and Federal Rule of Civil Procedure 23 permit
expansive assertions of personal jurisdiction by federal courts.
In Bristol-Myers, the Supreme Court reaffirmed the
constitutional limits on a state court’s assertion of personal
jurisdiction over an out-of-state defendant. See 137 S. Ct. at
1781. (I emphasize “defendant” because the Court made a point
to distinguish Phillips Petroleum Co. v. Shutts, 472 U.S. 79710
(1985), which dealt with the due process rights of absent class
member plaintiffs, as irrelevant. See Bristol-Myers, 137 S. Ct.
at 1782–83.).
The Court reiterated that courts have general jurisdiction
over a corporate defendant, and may hear any and all claims
against it, in forums where that defendant is fairly regarded as
at home. Id. at 1780. The place of incorporation and the
principal place of business are the paradigm forums for
exercising general jurisdiction over corporate defendants.
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). For Whole
Foods, those forums are Texas and Delaware. (It is worth
noting that the plaintiffs could have avoided this whole personal
jurisdiction imbroglio simply by driving 110 miles down the
road and filing this class action in Wilmington.) Other courts
may exercise specific jurisdiction over the defendant only with
respect to claims that arise out of or relate to the defendant’s
contacts with the forum. See Bristol-Myers, 137 S. Ct. at
1780–81.
Those principles were established prior to Bristol-Myers.
See id. at 1779–81. Bristol-Myers rejected almost unanimously
an effort by the California Supreme Court to relax the
requirements of specific jurisdiction for eight suits brought by
hundreds of joint plaintiffs—many of whom alleged injuries that
had no connection with California. Id. at 1778, 1781. The
California Supreme Court had applied what it called a “sliding
scale approach” to specific personal jurisdiction. Id. at 1778.
Under that approach, the greater the defendant’s contacts with
the forum, the less direct the connection needed to be between
those contacts and the out-of-state claims. See id. at 1778–79.
In light of Bristol-Myers’ extensive contacts with the state, the
state court concluded that it had specific jurisdiction over the
out-of-state claims because they were similar in several ways to
the in-state claims: they were based on the same allegedly
11
defective product, the same marketing, and the same promotion
of that product. Id. at 1779. The Supreme Court disagreed,
explaining that the existence of “similar” in-state claims was
insufficient to support personal jurisdiction over the out-of-state
claims. See id. at 1781. Due process protected Bristol-Myers
from being haled into a state court on claims that had no
independent connection to the forum. Id. at 1780–81.
Although the Supreme Court avoided opining on whether
its reasoning in the mass action context would apply also to
class actions, it seems to me that logic dictates that it does.8
After all, like the mass action in Bristol-Myers, a class action is
just a species of joinder, which “merely enables a federal court
to adjudicate claims of multiple parties at once, instead of in
separate suits.” Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co., 559 U.S. 393, 408 (2010) (plurality opinion).
And since the requirements of personal jurisdiction must be
satisfied independently for “the specific claims at issue,”
Bristol-Myers, 137 S. Ct. at 1781, I think that personal
jurisdiction over claims asserted on behalf of absent class
members must be analyzed on a claim-by-claim basis.
The plaintiffs argue, however, that the reasoning of Bristol-
Myers does not apply to class actions (in state or federal court)
because absent class members should not be considered
“parties” for personal-jurisdiction purposes. The district court
agreed, following the lead of other courts that have read Bristol-
Myers to apply only to claims asserted by “real part[ies] in
8
I have always been wary of Holmes’s statement that the life of
the law has not been logic, but experience. See Oliver Wendell
Holmes, Jr., The Common Law 1 (1881). Experience, as Holmes
readily conceded, includes considerations of policy. Such
considerations may be appropriate in the common law and in
Congress, but not in federal courts.
12
interest.” Molock v. Whole Foods Mkt., Inc., 297 F. Supp. 3d
114, 126 (D.D.C. 2018); see id. (collecting cases). But neither
the plaintiffs, nor the district court, nor the courts upon which it
relied sufficiently explain why party status matters. Some courts
(and the plaintiffs here) focus on the Supreme Court’s
statements in Devlin v. Scardelletti, 536 U.S. 1 (2002), that
absent class members may be parties for some purposes and not
for others, because “[t]he label ‘party’ does not indicate an
absolute characteristic, but rather a conclusion about the
applicability of various procedural rules that may differ based on
context.” Id. at 9–10; see, e.g., Bristol-Myers, 137 S. Ct. at 1789
n. 4 (Sotomayor, J., dissenting); Al Haj v. Pfizer Inc., 338 F.
Supp. 3d 815, 819 (N.D. Ill. 2018). In Devlin, the Court was
faced with the question whether absent class members can
appeal a court-approved settlement. Id. at 7. But the reason
why party status mattered in Devlin was that the Court had
previously held that only parties to a lawsuit may appeal an
adverse judgment. See id. I do not read Devlin to make party
status the key to all disputes about absent class members.
Indeed, for the question at hand, the party status of absent
class members seems to me to be irrelevant. The Court’s focus
in Bristol-Myers was on whether limits on personal jurisdiction
protect a defendant from out-of-state claims, see 137 S. Ct. at
1781, and a defendant is subject to such claims in a nationwide
class action as well. A court’s assertion of jurisdiction over a
defendant exposes it to that court’s coercive power, so such an
assertion must comport with due process of law. See Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918
(2011). A court that adjudicates claims asserted on behalf of
others in a class action exercises coercive power over a
defendant just as much as when it adjudicates claims of named
plaintiffs in a mass action. After all, the goal of a nationwide
class action is “a binding judgment over the defendant as to the
claims of the entire nationwide class—and the deprivation of the
13
defendant’s property accordingly.” 2 William B. Rubenstein,
Newberg on Class Actions § 6:26 (5th ed. 2019). And much
like the class action mechanism cannot circumvent the
requirements of Article III, see Tyson Foods, Inc. v.
Bouaphakeo, 136 S. Ct. 1036, 1053 (2016) (Roberts, C.J.,
concurring), it is not a license for courts to enter judgments on
claims over which they have no power. A defendant is therefore
entitled to due process protections—including limits on
assertions of personal jurisdiction—with respect to all claims in
a class action for which a judgment is sought. See 2 Rubenstein,
Newberg on Class Actions § 6:26.9
The district court also distinguished Bristol-Myers on the
ground that the present class action must eventually satisfy the
requirements of Federal Rule of Civil Procedure 23, which, in
its view, adequately protect a defendant’s due process rights.
Since Rule 23 ensures that a defendant will be presented with a
“unitary, coherent claim,” as one court put it, some have thought
that it is not unfair to bring the defendant into a court where it
will be sued on local claims anyway to provide a “unitary,
coherent defense.” Sanchez v. Launch Tech. Workforce Sols.,
297 F. Supp. 3d 1360, 1366 (N.D. Ga. 2018).
I do not think, however, that Rule 23’s standards are an
adequate substitute for normal principles of personal
jurisdiction. On its face, the Rule primarily focuses on the
relationship between the claims of the named representatives
9
For the same reasons, even if the plaintiffs’ broad reading of
Devlin were correct (i.e., that party status is the relevant inquiry, one
that depends on context), I would conclude that absent class members
are parties for purposes of personal jurisdiction over the defendant.
The relevant “context” here is the set of principles that limits courts
from holding defendants liable for out-of-state claims, which is
precisely the relief that this nationwide class action seeks.
14
and the absent class members.10 Much of it could be described
as requiring sufficient similarity between those claims.11 But as
described above, using the “similarity” of claims to relax the
standards of personal jurisdiction was one of the mistakes that
the state court made in Bristol-Myers. See 137 S. Ct. at 1779,
1781. The Supreme Court explained that even where the claims
at issue are similar, limits on personal jurisdiction guard against
more than just inconvenience for a defendant. They go to “the
more abstract matter of submitting to the coercive power of a
State that may have little legitimate interest in the claims in
question.” Id. at 1780. In this case, for example, states where
Whole Foods does only some of its business may have no
connection to, and no legitimate interest in, claims arising from
Whole Foods’ dealings elsewhere. Rule 23 and its state
analogues offer no protection in that respect; limits on personal
jurisdiction do. To be sure, it may not immediately be apparent
how that “more abstract” interest protected by limits on personal
jurisdiction is implicated by a suit in federal court, but as I shall
explain, Federal Rule of Civil Procedure 4(k)(1)(A) supplies the
same concern for horizontal federalism. For now, the point is
that Rule 23 and its state analogues are not a substitute for
normal limits on personal jurisdiction.
In the alternative, the plaintiffs contend that even if Bristol-
Myers applies to class actions generally, federal courts are
10
The Rule requires, inter alia, that there are questions of law or
fact common to the class, that the claims or defenses of the
representative parties are typical of the claims or defenses of the class,
and that the representative parties will fairly and adequately protect
the interests of the class. See Fed. R. Civ. P. 23(a).
11
See Fed. R. Civ. P. 23(a); id. R. 23(b)(3) (requiring that
common questions of law or fact predominate over questions affecting
only individual class members).
15
permitted by the Fifth Amendment and Rule 23 to exercise
personal jurisdiction over the nationwide claims at issue here.
Unlike in state courts, which are governed by the Fourteenth
Amendment, due process limitations on federal courts are
governed by the Fifth Amendment. Livnat v. Palestinian Auth.,
851 F.3d 45, 54 (D.C. Cir. 2017). In both contexts, courts may
exercise specific jurisdiction over a defendant only if the claims
at issue arise out of or relate to the defendant’s minimum
contacts with the forum. See id. at 48, 54–55. The scope of the
relevant contacts can differ between state and federal courts,
however, because the relevant “forum” can differ. Id. at 55.
The forum for a state court is the state itself. Id. But standing
alone, the Fifth Amendment requires only that the claims at
issue in a federal court arise out of the defendant’s minimum
contacts with the United States as a whole. Id.; see In re Sealed
Case, 932 F.3d 915, 925 (D.C. Cir. 2019). Thus nothing in the
Constitution would prevent Congress from authorizing a federal
court to exercise specific personal jurisdiction over claims in
this nationwide class action, so long as the claims arise out of
Whole Foods’ minimum contacts with the United States.
But Congress has done no such thing. Congress typically
authorizes us to exercise personal jurisdiction by way of statutes
or Rules that authorize service of process on a defendant. See
BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1555 (2017). The
governing Rule in this case is Federal Rule of Civil Procedure
4(k)(1)(A), which reads in relevant part, “(1) In General.
Serving a summons or filing a waiver of service establishes
personal jurisdiction over a defendant: (A) who is subject to the
jurisdiction of a court of general jurisdiction in the state where
the district court is located.” The effect of this provision is that
in the absence of another statute or Rule expanding the reach of
effective service of process, a district court’s analysis of
personal jurisdiction in a civil action will be identical to the
Fourteenth Amendment inquiry undertaken by the relevant state
16
court. In re Sealed Case, 932 F.3d at 924. No other statute or
Rule currently authorizes a more expansive assertion of personal
jurisdiction in this case, See 2 Rubenstein, Newberg on Class
Actions § 6:26, so the district court may exercise personal
jurisdiction over Whole Foods only with respect to claims
arising out of or relating to its contacts with the District of
Columbia.12
The plaintiffs and an amicus contend that while Rule
4(k)(1)(A) limits the reach of the district court’s personal
jurisdiction over Whole Foods at the outset of the suit, the Rule
has no force when absent class members’ claims are later added
to the suit at certification. Otherwise, they argue, all class
members would be required to serve process on Whole Foods at
certification, which obviously is not the law.
This argument equates the method of service that Rule
4(k)(1) provides for initiating suits generally (“[s]erving a
summons or filing a waiver of service”) with the territorial
limitations on amenability to service (and therefore personal
jurisdiction) set out in that provision’s subsections. See Omni
Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97,
103 n.6 (1987) (distinguishing between the two). The former
applies only when the suit is initiated, but the latter remain
operative throughout the proceedings. Amended complaints, for
example, are usually served on defendants pursuant to Rule
5(a)(1), but the claims they contain are still subject to the limits
12
The Federal Rules of Civil Procedure treat the District of
Columbia as a “state.” Fed. R. Civ. P. 81(d)(2). The District, in turn,
generally construes the relevant portions of its long-arm statute to be
coextensive with the limits set by the Due Process Clause of the
Fourteenth Amendment. See Forras v. Rauf, 812 F.3d 1102, 1106
(D.C. Cir. 2016); Mouzavires v. Baxter, 434 A.2d 988, 990–91 (D.C.
1981) (en banc) (per curiam).
17
of the applicable subsection of Rule 4(k)(1). See, e.g., Old
Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 902–03
(10th Cir. 2017) (evaluating amended complaint under Rule
4(k)(1)(A)). Otherwise, litigants could easily sidestep the
territorial limits on personal jurisdiction simply by adding
claims—or by adding plaintiffs, for that matter—after
complying with Rule 4(k)(1)(A) in their first filing. That, too,
is decidedly not the law. So while absent class members will
not be required to serve process on Whole Foods under Rule
4(k)(1) at certification, the territorial limit on personal
jurisdiction set out in Rule 4(k)(1)(A) will still be in effect. See
generally A. Benjamin Spencer, Out of the Quandary: Personal
Jurisdiction Over Absent Class Member Claims Explained, 39
Rev. of Litig. 31 (2019).
The continuing effect of Rule 4(k)(1)(A)’s territorial
limitation at the class certification stage also rebuts the
plaintiffs’ contention that Rule 23 of its own force authorizes
district courts to adjudicate nationwide claims. Rule 23’s
standards for certifying federal class actions do not address
personal jurisdiction, either explicitly or implicitly. Cf. In re
Sealed Case, 932 F.3d at 925. The same goes for the Class
Action Fairness Act. See 28 U.S.C. § 1332(d).
* * *
The plaintiffs and an amicus contend that my conclusions
would have a devastating impact on the viability of class
actions. I think that prediction is vastly overstated. As I pointed
out above, these plaintiffs could have brought a nationwide class
action against Whole Foods in Delaware without any personal
jurisdiction difficulties. Cf. Bristol-Myers, 137 S. Ct. at 1783.
And Whole Foods employees may be able to file statewide class
actions in their own respective states. Cf. id. Further, my views
do not call into question the use of multidistrict litigation, since
18
cases subject to that process are eventually returned to their
original courts for trial purposes. See Lexecon Inc. v. Milberg
Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34, 40 (1998); 28
U.S.C. § 1407(a).
Moreover, the limits that do follow from applying Bristol-
Myers to class actions in federal court are no different from the
limits that apply when individual plaintiffs sue on their own
behalf, and that must be tolerated under current law. For
example, it is true that plaintiffs likely would be unable to bring
a unitary nationwide class action against two or more defendants
who are subject to general jurisdiction in different states. Cf.
Bristol-Myers, 137 S. Ct. at 1789 (Sotomayor, J., dissenting).
And it is hard to see how a nationwide class action could
proceed against a foreign defendant who is not subject to general
jurisdiction anywhere in the United States, at least in diversity
cases. Cf. id; Fed. R. Civ. P. 4(k)(2). But similarly an
individual plaintiff—not a class action—ordinarily cannot bring
these sorts of defendants into a court to answer to claims that
have nothing to do with the forum. And procedural tools like
class actions and mass actions are not an exception to ordinary
principles of personal jurisdiction. The Court was apparently
willing to live with the consequences of that fact in Bristol-
Myers, see 137 S. Ct. 1789 (Sotomayor, J., dissenting), and we
should do likewise.13
13
Since the Court made clear in Bristol-Myers that it was merely
applying settled law, 137 S. Ct. at 1781, 1783, it is rather puzzling that
challenges to class actions on these grounds were not raised until
recently. Bristol-Myers seems to have focused the attention of
defendants on the implications of the Court’s prior personal
jurisdiction decisions.