Womble Bond Dickinson v. Kim ( 2023 )

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Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
18-OCT-2023
08:27 AM
Dkt. 60 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
WOMBLE BOND DICKINSON (US) LLP; SHOOK, HARDY & BACON L.L.P.; and
COVINGTON & BURLING LLP, Petitioners,
vs.
THE HONORABLE ROBERT D.S. KIM,
Chief Judge of the Circuit Court of the Third Circuit,
State of Hawaiʻi, Respondent Judge,
and
MARVIN MANIOUS; VALERIE MANIOUS; R.J. REYNOLDS TOBACCO COMPANY;
PHILIP MORRIS USA, INC.; LIGGETT GROUP LLC; GREENSPOON MARDER
LLP; FOODLAND SUPER MARKET, LIMITED; J. HARA STORE, INC.; and
WALMART INC., Respondents.
SCPW-XX-XXXXXXX
ORIGINAL PROCEEDING
(CASE NO. 3CCV-XX-XXXXXXX)
OCTOBER 18, 2023
RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ.,
CIRCUIT JUDGE TONAKI IN PLACE OF NAKAYAMA, J., RECUSED, AND
CIRCUIT JUDGE MALINAO, IN PLACE OF WILSON, J., RECUSED
OPINION OF THE COURT BY EDDINS, J.
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I.
Three law firms petition this court to order a judge to get
them out of a case. They argue the Circuit Court of the Third
Circuit lacks jurisdiction to hale them into Kona - side by side
with the tobacco companies they long-counseled - in a products
liability, fraud, and conspiracy suit.
The circuit court relied on conspiracy jurisdiction to
invoke jurisdiction. Not only is that theory of specific
personal jurisdiction unconstitutional, the law firms maintain,
but this court has never endorsed conspiracy jurisdiction. And
we shouldn’t now. But if we did, the court still lacks
jurisdiction - the pleadings and the evidence produced at a
Hawaiʻi Rules of Civil Procedure Rule 12(b)(2) motion to dismiss
were insufficient.
We adopt conspiracy jurisdiction. Still, the circuit court
lacked personal jurisdiction. The law firms are out.
II.
In March 2022, Marvin Manious and Valerie Manious
(plaintiffs) sued ten defendants: Philip Morris USA Inc. (Philip
Morris); RJ Reynolds Tobacco Company (Reynolds); Liggett Group
LLC (Liggett); Shook, Hardy & Bacon L.L.P. (Shook); Covington &
Burling L.L.P. (Covington); Greenspoon Marder L.L.P.; Womble
Bond Dickinson (US) L.L.P. (Womble); Foodland Super Market; J.
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Hara Store; and Walmart. The Maniouses filed their suit in the
Circuit Court of the Third Circuit.
Plaintiffs are Hawaiʻi residents. Marvin Manious has
laryngeal cancer. Smoking cigarettes caused his cancer, the
Maniouses allege. Those cigarettes were “designed,
manufactured, advertised, marketed, distributed and/or sold” by
Defendant R.J. Reynolds Tobacco Company. Plaintiffs say Philip
Morris, Reynolds, and Liggett advertised and marketed cigarettes
in Hawaiʻi and that Foodland, J. Hara, and Walmart operated
retail outlets where Marvin Manious bought his cigarettes.
Plaintiffs brought product liability, fraud, and conspiracy
claims against the cigarette manufacturers and retailers. They
also brought two conspiracy counts specifically against the law
firms.
Why sue the law firms? Plaintiffs allege the cigarette
companies “utilized” the law firms as in-house and outside
counsel to “conceal and misrepresent the harms of smoking
cigarettes, secondhand smoke, . . . and the addictive qualities
of nicotine.” Their complaint claims the cigarette companies
hired the law firms beginning in the 1950s “to assist them in
their conspiratorial activities which included to conceal and
misrepresent the harms of smoking and its addictive nature to
the public.”
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According to Plaintiffs, the law firms “played a central
role in the creation and perpetuation of the conspiracy and the
implementation of its fraudulent schemes throughout the United
States as well as in Hawaiʻi.” Plaintiffs say that the law firms
oversaw scientific research, reviewed advertisements, and
provided false testimony to government agents. They directed
their conduct “throughout the United States, including to the
State of Hawaiʻi.”
Plaintiffs allege that the law firms orchestrated a
conspiracy through an association known over time as the
“Committee of Counsel.” One count claims that the law firms
conspired to commit fraudulent concealment: “As a direct and
foreseeable result of the law firms’ fraudulent conduct in
assisting Philip Morris, RJ Reynolds, Liggett and their co-
conspirators conceal the health effects and addictive nature of
cigarettes, consumers in Hawaiʻi, including Marvin Manious, were
not aware of the true harms and addictive nature of cigarettes.”
The complaint alleges in another count that the law firms
conspired to commit fraudulent misrepresentations. Factually,
the complaint’s fraudulent concealment and fraudulent
misrepresentations counts are mirror images.
The law firms each moved to dismiss under Hawaiʻi Rules of
Civil Procedure (HRCP) Rule 12(b)(2) for “lack of jurisdiction
over the person.” They make similar, though not identical,
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arguments for dismissal. They contend that Hawaiʻi courts lack
general and specific jurisdiction over them.
Plaintiffs counter that the complaint supports specific
jurisdiction because it alleges that the law firms were engaged
in a conspiracy with a goal to maximize the sale of cigarette
products throughout the United States, including Hawaiʻi.
Plaintiffs maintain that the law firms conspired with the
cigarette companies and retailers to specifically target Hawaiʻi
“with fraudulent advertisements and marketing materials,
misinformation, and misleading statements.”
Plaintiffs submitted 49 exhibits, totaling hundreds of
pages, to back their position that the law firms “conspired with
others to create a massive fraud that reached into Hawaiʻi.” And
for the first time, Plaintiffs introduced conspiracy
jurisdiction to support the court’s specific personal
jurisdiction.
Shook’s reply memorandum points out that watermarks
populate Plaintiffs’ documents, meaning that “most of
Plaintiffs’ exhibits come from the searchable Truth Tobacco
Industry Documents database.” That database is “[a]n archive of
14 million documents created by tobacco companies about their
advertising, manufacturing, marketing, scientific research and
political activities.” See
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https://industrydocuments.ucsf.edu/tobacco/
[https://perma.cc/4UB8-HLT2].
In October 2022, the circuit court ruled it had
jurisdiction over three of the law firms (Shook, Covington, and
Womble). The court entered pithy orders denying the motions to
dismiss. Conspiracy jurisdiction defeated the law firms’
12(b)(2) motions. “The Court finds and concludes that it may
exercise personal jurisdiction . . . based on conspiracy
jurisdiction.” The court did not make minimum contacts findings
or undertake any due process analysis.
The court granted without prejudice Greenspoon’s motion to
dismiss. Later, Plaintiffs and Greenspoon submitted a joint
stipulation dismissing that law firm as a defendant with
prejudice. The court signed off. Greenspoon was out.
The remaining law firms moved for leave to file an
interlocutory appeal and stay the proceedings. The court denied
those motions.
About one week later, the law firms petitioned this court.
They request a writ of prohibition enjoining the circuit court
from exercising personal jurisdiction over them, or
alternatively for a writ of mandamus ordering dismissal for lack
of personal jurisdiction. The law firms urge us to reject
conspiracy jurisdiction as a way to invoke specific personal
jurisdiction. But should we adopt conspiracy jurisdiction, it
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does not operate to hale them into the third circuit, they
maintain. The law firms’ writ poses two questions:
1. Does a circuit court violate the Due Process Clause of
the U.S. Constitution and thus exceed its jurisdiction when
it purports to exercise personal jurisdiction over a
defendant based on the “conspiracy theory of personal
jurisdiction”?
2. Even if the “conspiracy theory of personal jurisdiction”
were valid under current U.S. Supreme Court precedent, did
the circuit court exceed its jurisdiction here where it
purported to exercise personal jurisdiction over the Law
Firms despite the absence of any evidence that substantial
steps in furtherance of the conspiracy were taken in
Hawaiʻi, or that the alleged conspiracy targeted Hawaiʻi?
We answer question 1 No.
We answer question 2 Yes.
III.
A.
To bring a defendant to our courts, a plaintiff must
establish personal jurisdiction. Courts invoke personal
jurisdiction through general or specific jurisdiction. See
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011).
The parties agree on one thing. There is no general
jurisdiction.
There’s no place other than home for general jurisdiction.
A business entity has two home states: its place of
incorporation and its principal place of business. BNSF Ry. Co.
v. Tyrrell, 581 U.S. 402, 413 (2017). The law firms are not “at
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home” in Hawaiʻi. See Ford Motor Co. v. Montana Eighth Jud.
Dist. Ct., 141 S. Ct. 1017, 1024 (2021). Here, Shook is
incorporated in Missouri, and has its principal place of
business there. Covington is incorporated under Delaware law
and has its principal place of business in the District of
Columbia. Womble is incorporated in North Carolina, and has its
principal place of business there.
Since the court lacks general jurisdiction, Plaintiffs must
show specific jurisdiction.
B.
Hawaiʻi courts first consider whether Hawaiʻi Revised
Statutes (HRS) § 634-35 (2016) allows specific jurisdiction.
See Yamashita v. LG Chem, Ltd., 152 Hawaiʻi 19, 21, 518 P.3d
1169, 1171 (2022). Typically, Hawaiʻi’s long-arm statute is not
decisive. Instead, it blends into the due process analysis.
Id. at 22, 518 P.3d at 1172. Hawaiʻi law “allows Hawaiʻi courts
to invoke personal jurisdiction to the full extent permitted by
the due process clause.” Id. at 21, 518 P.3d at 1171.
Specific jurisdiction over out-of-state defendants is based
on “minimum contacts.” International Shoe Co. v. State of Wash.
Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316
(1945). To protect out-of-state actors’ due process rights,
courts rely on a three-part specific jurisdiction test: (1) the
nonresident defendant must “purposefully avail[]” itself of the
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privilege of conducting activities within the forum state; (2)
plaintiff’s claims “must arise out of or relate to the
defendant’s contacts” within the forum; and (3) the exercise of
jurisdiction must “not offend traditional notions of fair play
and substantial justice.” Ford Motor Co., 141 S. Ct. at 1024-
25.
International Shoe still fits. But Shoe’s well-worn
standards of “fair play,” “justice,” and “minimum contacts”
clash with the way courts determined personal jurisdiction in
the very old days. See Pennoyer v. Neff, 95 U.S. 714, 733
(1877) (holding that courts lack jurisdiction over defendants
who are not physically present in that state or who have not
consented to jurisdiction).
Some justices hint that personal jurisdiction law should
revert to the 19th century economy’s “tag” rule. See Ford Motor
Co., 141 S. Ct. at 1038 (Gorsuch, J., concurring) (noting that
courts could revive the “old ‘tag’ rule” to hale corporations
into court); Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028,
2040 (2023) (signaling that the original public meaning of
personal jurisdiction entails the “traditional tag rule” and
suggesting that a state registration law requiring a corporation
to consent to jurisdiction operates like that procedure).
Playing tag would seem to unravel long-arm statutes like
HRS § 634-35. A state registration statute may preserve
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jurisdiction over corporations conducting business in a state.
But what about other businesses, shell companies, and
individuals that do not enter or remain in a forum state? See
Shaffer v. Heitner, 433 U.S. 186, 200 (1977) (“The Pennoyer
rules generally favored nonresident defendants by making them
harder to sue.”).
For now, plaintiffs and defendants are not playing tag like
it’s 1868. Today, defendants must have minimum contacts with
the forum state such that exercising jurisdiction over a
defendant does not offend traditional notions of fair play and
substantial justice.
First, plaintiffs must show purposeful availment.
Purposeful availment occurs when a defendant purposefully
directs activities toward the forum, or performs some act to
invoke the benefits and protections of its laws. In Interest of
Doe, 83 Hawaiʻi 367, 374, 926 P.2d 1290, 1297 (1996).
Plaintiffs allege the law firms “played a central role in
the creation and perpetuation of the conspiracy and the
implementation of its fraudulent schemes throughout the United
States.” Going nationwide though does not mean a defendant
purposefully directs conduct at any particular state.
Nationwide conduct does not blow an unpoppable jurisdictional
bubble that follows plaintiffs wherever they go. See J.
McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 885-86
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(2011) (explaining that a defendant’s national conduct covering
all states does not “establish[] that [the defendant] engaged in
conduct purposefully directed at” any particular state.) “The
placement of a product into the stream of commerce, without
more, is not an act of the defendant purposefully directed
toward the forum State.” Asahi Metal Indus. Co., Ltd. v. Super.
Ct. of California, Solano Cnty., 480 U.S. 102, 112 (1987).
Plaintiffs’ claims also do not arise out of or relate to
the law firms’ contacts with Hawaiʻi. The law firms have no
state contacts by themselves. And any indirect contacts are not
related to the cause of action. “Relate to” incorporates real
limits. See Ford Motor Co., 141 S. Ct. at 1026.
The circuit court understood the problem traditional
specific personal jurisdiction posed to hale the law firms into
the Third Circuit. Only conspiracy jurisdiction brought the law
firms to Kona, the court ruled.
Next, we consider conspiracy jurisdiction.
C.
Conspiracy jurisdiction is a type of specific jurisdiction.
It allows a court to invoke jurisdiction over a conspiring out-
of-state defendant. If a co-conspirator takes sufficient action
in the forum state, a defendant’s own state contacts are
immaterial. The acts of a co-conspirator within a state may
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support jurisdiction. See In re Platinum & Palladium Antitrust
Litig., 61 F.4th 242, 269 (2d Cir. 2023).
Commonly, specific personal jurisdiction based on
conspiracy jurisdiction has three elements: “(1) a conspiracy
(2) in which the defendant participated and (3) a co-
conspirator’s overt act within the forum, subject to the long-
arm statute and in furtherance of the conspiracy.” Youming Jin
v. Ministry of State Sec., 335 F. Supp. 2d 72, 78 (D.D.C. 2004)
(cleaned up).
The law firms believe conspiracy jurisdiction violates the
due process clause. They say Walden v. Fiore, 571 U.S. 277(2014) “undercut the very foundation of conspiracy
jurisdiction.”
In Walden, law enforcement officers stopped a man at the
Atlanta airport. They seized the man and his money before he
boarded a flight home to Nevada. 571 U.S. at 279-81. He sued
the officers in Nevada, alleging they falsified affidavits to
justify taking his property. Id. One officer (Walden) argued
the court lacked personal jurisdiction over him since he did not
have minimum contacts with Nevada. Id. at 281.
Walden won. Minimum contacts focus on the defendant’s
contacts with the state, not the plaintiff’s contacts. Id. at
284. Walden’s only connection to Nevada was knowledge the
plaintiff lived there. The “plaintiff cannot be the only link
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between the defendant and the forum.” Id. at 285 (emphasis
added). “The proper question is not where the plaintiff
experienced a particular injury or effect but whether the
defendant’s conduct connects [them] to the forum in a meaningful
way.” Id. at 290.
Walden demands a defendant-focused inquiry. Like Ford
Motor Co. and other personal jurisdiction cases, Walden fastens
the inquiry to the defendant’s contacts. “[I]t is the
defendant, not the plaintiff or third part[y], who must create
contacts with the forum State.” Id. at 291.
Because of the “third party” language, the law firms argue
that Walden precludes conspiracy jurisdiction. True, a
defendant’s relationship to a third party is insufficient.
Courts may not exercise personal jurisdiction over a defendant
based only on someone else’s conduct. Yet Walden says nothing
about a defendant who participates in a conspiracy that
substantially targets a forum state – and knows it.
A co-conspirator isn’t like a third party. Typically, a
co-conspirator is a co-defendant. Co-conspirator relationships
do not resemble a defendant’s singular relationship with a
plaintiff or a third party. A conspiracy needs conspirators.
Co-conspirators join forces to achieve an objective. One co-
conspirator may commit overt acts in a state, while another co-
conspirator may not. “In a conspiracy, an individual’s actions
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in furtherance of the conspiracy are not unilateral because
conspiratorial acts have at their foundation an agreement and
the involvement of other co-conspirators.” Santa Fe Techs.,
Inc. v. Argus Networks, Inc., 42 P.3d 1221, 1234 (N.M. Ct. App.
2001).
Co-conspirators resemble agents more than third parties.
“[B]ecause a conspiracy is a type of agency relationship, an act
taken during the course of a conspiracy relationship may lead to
specific personal jurisdiction over a defendant.” Raser Techs.,
Inc., by & through Houston Phoenix Grp., LLC v. Morgan Stanley &
Co., LLC, 449 P.3d 150, 167-68 (Utah 2019). “[C]ivil co-
conspirators, like criminal co-conspirators, act as agents of
one other when engaging in acts in furtherance of their
conspiracy.” Mackey v. Compass Mktg., Inc., 892 A.2d 479, 495
(Md. 2006).
Comparing co-conspirators to agents is mistaken, the law
firms contend. Defendants control agents, not necessarily their
co-conspirators. We do not believe this distinction makes
agency irrelevant to conspiracy jurisdiction. Walden recognized
that an agent’s in-state acts operate as a “relevant contact”
for due process purposes. And an agent’s acts are within the
reach of Hawaiʻi’s long-arm statute. See HRS § 634-35 (reaches
those who act “in person or through an agent.”). While
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conspiracy and agency relationships are not exactly the same,
they are closely related.
So no, Walden doesn’t doom conspiracy jurisdiction.
Rather, it keeps the jurisdictional analysis focused on what a
defendant knew and did.
Post-Walden cases endorse conspiracy jurisdiction. For
instance, in Nevada, the court parsed Walden and decided that
conspiracy jurisdiction provides a basis for personal
jurisdiction if the conspirators reasonably expect their actions
to have consequences in the forum state. Tricarichi v. Coop.
Rabobank, U.A., 440 P.3d 645, 653 (Nev. 2019). Utah also
adopted conspiracy jurisdiction where “the defendant could have
reasonably anticipated being subject to jurisdiction in the
forum state because of [their] participation in the conspiracy.”
Raser Techs., 449 P.3d at 170. And Tennessee reinforced its
pre-Walden position that conspiracy jurisdiction is a basis for
specific jurisdiction. See First Cmty. Bank, N.A. v. First
Tennessee Bank, N.A., 489 S.W.3d 369, 395 (Tenn. 2015).
After Walden, the Second Circuit kept conspiracy
jurisdiction. The Supreme Court, it observed, has not
“delineated when one conspirator’s minimum contacts allow for
personal jurisdiction over a co-conspirator.” Charles Schwab
Corp. v. Bank of America Corp., 883 F.3d 68, 86 (2d Cir. 2018).
Plaintiffs satisfy due process if “(1) a conspiracy existed; (2)
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the defendant participated in the conspiracy; and (3) a co-
conspirator’s overt acts in furtherance of the conspiracy had
sufficient contacts with a state to subject that co-conspirator
to jurisdiction in that state.” Id. at 87.
We hold that conspiracy jurisdiction satisfies due process
principles when Plaintiffs plead, or upon challenge show, the
defendant’s knowledge or awareness of a co-conspirator’s acts
within the jurisdiction. EIG Energy Fund XIV, L.P. v. Petróleo
Brasileiro S.A., 246 F. Supp. 3d 52, 90 (D.D.C. 2017), aff’d,
894 F.3d 339 (D.C. Cir. 2018).
We endorse EIG’s approach. To establish conspiracy
jurisdiction, a plaintiff must plead with particularity, or upon
challenge show, the conspiracy as well as the overt acts within
the forum taken in furtherance of the conspiracy. Id. At a
minimum, a plaintiff must show that the defendant knew their co-
conspirator was carrying out acts in furtherance of the
conspiracy in the forum. Id. at 91.
Because of its defendant-centered focus, we believe a
pleading and proof standard that requires the defendant’s
knowledge of a co-conspirator’s overt acts in the forum state
squares with precedent. If a plaintiff shows that the defendant
knew a co-conspirator was carrying out acts in furtherance of
the conspiracy in the forum, then conspiracy jurisdiction
satisfies federal due process. Thus, we adopt conspiracy
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jurisdiction with a knowledge requirement. A plaintiff must:
(1) allege that the defendant knew of the co-conspirator’s acts
in the forum; and (2) plead with particularity, or upon
challenge show, the conspiracy as well as the overt acts within
the forum taken in furtherance of the conspiracy.
D.
We hold that Hawaiʻi courts have jurisdiction to hear cases
involving out-of-state defendants engaged in conspiracies that
directly target our state.
Conspiracy jurisdiction allows a Hawaiʻi plaintiff to sue a
conspiring, but far flung, defendant here. It keeps our court
doors open to those who allege international, national, and
other conspiracies directed at Hawaiʻi. It aligns with our
state’s spirit of access to justice. Hawaiʻi courts should not
shut to plaintiffs who properly allege a conspiracy where at
least one defendant took substantial action in our state and the
other defendants knew about it.
Sometimes, conspiracy jurisdiction may be the only way to
establish jurisdiction over out-of-state defendants engaged in
widespread conspiracies targeting a particular state.
Courts have invoked conspiracy jurisdiction to cover
fraudulent schemes and scams. Plaintiffs have used it to sue
banks for conspiracy to price fix. See, e.g., Schwab Short-Term
Bond Mkt. Fund v. Lloyds Banking Grp. PLC, 22 F.4th 103, 123 (2d
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Cir. 2021), cert. denied, 142 S. Ct. 2852 (2022). And in Ponzi
schemes. See, e.g., Palumbo v. New Direction IRA, Inc., No.
6:19-cv-235 (GLS/TWD), 2020 WL 5045158, at *3 (N.D.N.Y. Mar. 27,
2020). Multi-state loan scams, too. See Galloway v.
Martorello, No. 3:19-cv-314, 2023 WL 5183204, at *10 (E.D. Va.
Aug. 11, 2023). Courts have also invoked conspiracy
jurisdiction in multi-defendant tobacco litigation cases. See,
e.g., Simon v. Philip Morris, Inc., 86 F. Supp. 2d 95, 120–21
(E.D.N.Y. 2000) (collecting cases).
Plaintiffs can recover damages from defendants who conspire
to commit fraudulent acts in a forum state. If a person or
company conspires to do unlawful things in Hawaiʻi and knows a
co-conspirator is taking substantial steps here to advance those
conspiratorial aims, then we believe our courts may invoke
personal jurisdiction.
E.
Though we adopt conspiracy jurisdiction, the law firms win.
The allegations against them, and the evidence offered by
Plaintiffs at the HRCP Rule 12(b)(2) motion, fail to establish
conspiracy jurisdiction.
Conspiracy jurisdiction does not mean anything goes.
“[B]ald speculation” or “conclusionary statement[s]” do not
establish conspiracy jurisdiction. See Naartex Consulting Corp.
v. Watt, 722 F.2d 779, 787 (D.C. Cir. 1983).
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Unlike the claims against the tobacco companies and
retailers, Plaintiffs do not allege in the complaint that the
law firms had any direct contacts in Hawaiʻi. Rather, the
complaint alleges the law firms puppet-mastered a conspiracy
from afar.
Plaintiffs say that starting in the 1950s, the law firms
conspired with the cigarette manufacturers “to conceal the
health effects and addictive nature of smoking cigarettes” with
the “ultimate goal” of maximizing their clients’ “sale of
cigarette products throughout the United States.” The complaint
alleges that the law firms controlled research conducted by the
manufacturers to prevent negative research from being published
about cigarettes, “misdirected” efforts to focus on other causes
of smoking-related diseases, identified and established
relationships with “friendly” scientific witnesses, and engaged
in document destruction and hiding of “negative industry
documents behind the guise of work product privilege.”
Plaintiffs level rangy accusations. But nowhere do they
claim the law firms knew of overt acts by co-conspirators
specifically targeting Hawaiʻi, rather than the United States as
a whole. And the allegations, for instance the claim that the
law firms were “engaged in a fraud directed nationally and at
the State of Hawaiʻi,” are conclusory. See American Land
Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V., 710
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F.2d 1449, 1454 (10th Cir. 1983) (“Mere allegations of
conspiracy, without some sort of prima facie factual showing of
a conspiracy, cannot be the basis of personal jurisdiction of
co-conspirators outside the territorial limits of the court.”)
(cleaned up).
An HRCP Rule 12(b)(2) motion to dismiss challenges a
court’s jurisdiction over a defendant. Plaintiffs have the
burden to establish personal jurisdiction. Unlike Rule 12(b)(1)
and 12(b)(6) motions to dismiss, the court does not have to
accept a complaint’s allegations as true. To counter a Rule
12(b)(2) motion, Plaintiffs may present specific and relevant
evidence that connects the defendant with Hawaiʻi. See Shaw v.
N. Am. Title Co., 76 Hawaiʻi 323, 327, 876 P.2d 1291, 1295 (1994)
(plaintiffs must make a “prima facie showing of jurisdiction
through [their] own affidavits and supporting materials”). The
court resolves any factual variances to favor the exercise of
specific personal jurisdiction. Id.Plaintiffs opposed the law firms’ Rule 12(b)(2) motions to
dismiss. Plaintiffs claimed that the firms had direct contacts
with Hawaiʻi. They devised fraudulent messages that spread
through various print, radio, and broadcast media in Hawaiʻi.
Plaintiffs submitted scattered exhibits. Some extend to the
1950s. Few mention the law firms. All fail to establish a
sufficient connection between the law firms and Hawaiʻi.
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The exhibits occasionally mention the law firms. For
instance, exhibit A lists individuals who comprised the tobacco
institute “Committee of Counsel.” However, a document that
namedrops the law firms or their attorneys offers no connection
between the law firms and Hawaiʻi.
Some exhibits mention Hawaiʻi. Exhibit M is a 1980
advertisement. The small text reads in part: “C’mon up to KOOL,
Hawaii’s #1 cigarette family. . . . Right in step with Hawaii’s
cool taste.”
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Plaintiffs think the KOOL ad aids them. It shows marketing
in Hawaiʻi. But there’s no link to the law firms. Nothing
indicates that any law firm shaped the advertisement’s
messaging, or otherwise knew that ads like this were run in
Hawaiʻi.
Plaintiffs also provide a few exhibits about a research
proposal at the University of Hawaiʻi looking at “a possible
heredity factor in the tobacco smoking habit.” Some documents
include Shook meeting agendas that note the study. Sure, Shook
paid attention to the study. But nothing shows that Shook had
anything to do with the study, its funding, or that Shook took
any action at all directed at Hawaiʻi.
We conclude Plaintiffs fail to establish personal
jurisdiction. Their smattering of documents fail to show the
law firms knew of a co-conspirator’s targeted acts in the forum.
The evidence presented to parry the jurisdictional attack does
not demonstrate that the law firms conspired to direct
fraudulent messages at Hawaiʻi.
The third circuit did not properly exercise personal
jurisdiction over the law firms. Plaintiffs plead no facts, and
offer no evidence, to show the law firms knew a co-conspirator’s
actions expressly targeted Hawaiʻi. See Cengiz v. Salman, No.
20-3009 (JDB), 2022 WL 17475400, at *11 (D.D.C. Dec. 6, 2022).
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Courts do not have to accept inferences from plaintiffs that are
unsupported by the facts. Livnat v. Palestinian Auth., 851 F.3d
45, 57 (D.C. Cir. 2017).
Representing a client is not enough. Absent allegations
that a law firm operates in Hawaiʻi or that the firm knows of a
co-conspirator’s overt acts in Hawaiʻi to advance the conspiracy,
a plaintiff’s claim against a law firm is just an allegation
about “out-of-state activity by out-of-state actors.” Page v.
Democratic Nat’l Comm., No. 20 C 671, 2020 WL 8125551, at *4
(N.D. Ill. Aug. 17, 2020). A lawyer and client may be co-
conspirators. See Breaking Bad: Better Call Saul (AMC
television broadcast Apr. 26, 2009). But not here.
F.
Next, we conclude that jurisdictional discovery is
undeserved. Plaintiffs neither ask for jurisdictional
discovery, nor dispute the law firms’ argument that it’s not
warranted. “Jurisdictional discovery is only appropriate where
the party seeking such discovery provides some specific
indication regarding what facts additional discovery could
produce that would affect the court’s jurisdictional analysis.”
EIG Energy Fund, 246 F. Supp. 3d at 92 (cleaned up); see also
Coal. for Mercury–Free Drugs v. Sebelius, 725 F. Supp. 2d 1, 5
(D.D.C. 2010), aff’d, 671 F.3d 1275 (D.C. Cir. 2012) (no
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jurisdictional discovery when plaintiffs’ request was not
“narrowly tailored” to produce relevant information).
G.
Extraordinary writs are appropriate in extraordinary
circumstances. Exceeding jurisdiction, committing a “flagrant
and manifest abuse of discretion,” or “refus[ing] to act on a
subject properly before the court under circumstances in which
it has a legal duty to act,” are court actions and inaction that
may constitute extraordinary circumstances to issue a writ.
Kema v. Gaddis, 91 Hawaiʻi 200, 205, 982 P.2d 334, 339 (1999).
A petitioner must “demonstrate[] a clear and indisputable
right to the relief requested and a lack of other means to
redress adequately the alleged wrong or to obtain the requested
action.” Id. at 204, 982 P2d at 338. These conditions operate
to preserve a case’s usual progression.
A rule 12(b)(2) motion to dismiss is not an infrequent
filing. But it rarely results in a writ. The clear and
indisputable right to relief and normal appellate process
requirements typically push a jurisdictional challenge outside a
writ’s ambit. Pre-final judgment, this court has hardly ever
taken jurisdiction over a case where a party wants to writ the
trial court because it believes the court has exceeded its
jurisdiction. Indeed, the parties only cite two early-statehood
cases covering jurisdictionally-inspired writs. See e.g.,
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Victory Carriers, Inc. v. Hawkins, 44 Haw. 250, 254, 352 P.2d
314, 317 (1960) (explaining that “if it appears from the record
that the trial court is without jurisdiction over the person of
the defendant and relator, prohibition will lie to prevent the
court from further proceeding in the action.”); Atlas Elevator
Co. v. Presiding Judge of Cir. Ct. of First Cir., 49 Haw. 129,
412 P.2d 645 (1966).
Until now, this court has not considered conspiracy
jurisdiction. Because the law firms’ petition advanced a new
and extraordinary situation, we accepted it.
We hold that the circuit court clearly and indisputably
exercised jurisdiction beyond its authority and there were no
other means for the law firms to adequately address the alleged
wrong or to obtain dismissal.
The firms are entitled to relief. A contrary ruling would
subject the law firms to the very due process violations that
settled personal jurisdiction law aspires to avoid. See Atlas,
49 Haw. at 144, 412 P.2d at 655.
Plaintiffs may still sue the law firms, just not in Hawaiʻi.
Perhaps Plaintiffs will successfully show that the law firms
“stopped being counsel and became co-conspirators” and that they
“were instrumental in carrying out the conspiracy to
misrepresent the health effects and addictive nature of smoking
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cigarettes.” But that’s a question for a court that has
personal jurisdiction over the law firms.
IV.
The court grants the law firms’ writ of prohibition. We
direct the Circuit Court of the Third Circuit to dismiss with
prejudice the law firms as defendants.
Geoffrey Michael /s/ Mark E. Recktenwald
(Edmund K. Saffery, Deirdre
/s/ Sabrina S. McKenna
Marie-Iha, Thomas J. Hughes,
David M. Louie, Nicholas R. /s/ Todd W. Eddins
Monlux, Lincoln S.T. Ashida,
/s/ John M. Tonaki
Thomas Benedict on the briefs)
for petitioners /s/ Clarissa Y. Malinao
Phillip Holden
(Wayne Parsons, Sergio Rufo,
Alejandro Alvarez on the briefs)
for respondents Marvin Manious
and Valerie Manious
Melvyn M. Miyagi, Ross T.
Shinyama, Lisa M. Yang, Rihui
Yuan, W. Randall Bassett,
Spencer M. Diamond, Philip R.
Green
(on the briefs)
for respondent R.J. Reynolds
Tobacco Company
David M. Louie, Nicholas R.
Monlux, Lincoln S.T. Ashida
(on the briefs)
for respondent Philip Morris
USA, Inc.
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