Lead Opinion
Elijаh Palnik, known to his fans as Elijah Aaron, sued the producers and distri-
Our task now is to decide whether this decision was in error. To do so, we review the substance of what Palnik must show for the district court to exercise personal jurisdiction and the procedure by which Palnik must show it. Our law is clear on both points.
First. Palnik must demonstrate that jurisdiction is consistent with the rules of the forum state and in compliance with the Due Process Clause of the Fifth Amendment. Brunner v. Hampson,
As tо the Due Process Clause, there is, to be sure, a complex body of Supreme Court and circuit law interpreting the requirement that a defendant have “minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington,
The decision in Bridgeport Music, Inc. v. Still N the Water Publishing,
Accordingly, under both the Ohio long-arm statute and the Due Process Clause, Palnik must demonstrate more than the production of the movie by Cinеville and Picture Entertainment and its sale in Ohio; he must show that they, either through their own actions or through their distribution relationship, directed the product to Ohio.
Second. The strength and nature of the showing required of Palnik depend on how the court approaches the issue. Where, as here, a court deсides a motion to dismiss for lack of personal jurisdiction “solely on written submissions and affidavits ... rather than resolving the motion after either an evidentiary hearing or limited discovery, the burden on the plaintiff is relatively slight, and the plaintiff must make only a prima facie showing ... in order to defeat dismissal.” Air Prods. & Controls, Inc. v. Safetech Int’l, Inc.,
Together, these considerations leave us a straightforward decision. We are to determine whether Palnik has made prima face case based on Palnik’s allegations, and only Palnik’s allegations; the defendants’ affidavits contradicting the facts are irrelevant. To be entitled to proceed with his suit, Palnik must have alleged specific facts that establish with reasonable particularity that the defendants directed Steal Me to Ohio.
Palnik did not meet his burden. His complaint, to be sure, makes a number of
These allegations amount to the following facts as to our defendants: (1) the defendants participated in making the movie as “producers” or “distributors” (Palnik has since conceded that they are producers); (2) the defendants made money from the movie; (3) the movie ended up in Ohio by the actions of the original defendants collectively. Drawing inferences for Palnik, as we must, these allegations permit two potential conclusions as to the distribution of Steal Me to Ohio. First, our defendants, after making the movie, caused it to be distributed to Ohio through a national or regional distribution contract. Second, our defendants, for whatever reason — because they do not own the distribution rights, beсause they deferred entirely to a third-party distributor, or for another reason that gave them no control over the movie’s distribution — were not responsible for the movie appearing in Ohio.
Because one conclusion supports jurisdiction and the other does not, Palnik’s complaint remains unclear as to jurisdiction and therefore fails absent reasonably particular facts that resolve which is the better understanding of the defendants’ actions toward the forum state. Cf Twombly,
Palnik contends that this result puts a plaintiff like him in an impossible position because any information about the distribution relationship will be in control of the defendant. Both the Federal Rules of Civil Procedure and our case law governing personal jurisdiction are more forgiving to a litigant with an information deficit than this argument acknowledges. A party and her attorney can, on “knowledge, information, and belief,” assert specifically that the existence of the necessary distribution relationship will “likely have evidentiary support after a reasonable opportunity” for discоvery. See Fed.R.Civ.P. 11(b). And such an assertion will be assumed true for the purposes of the party’s prima facie case for jurisdiction “notwithstanding ... contrary assertions” from the defen
This procedural arrangement also defeats the related suggestion that a remand for limited discovery on the jurisdiction issue is necessary to dispose of the case. The district court exercised its discretion to decide jurisdiction on the papers, requiring Palnik to make only a prima facie showing of jurisdiction. In a case with this posture, it is usually the defendant, who otherwise would be left “unprotected from the plaintiffs bald written allegation of jurisdictional facts,” that “invoke[s] the court’s discretion to order a pretrial evi-dentiary heаring” or “proceed[s] to trial without waiving the defense” after the court has held allegations to be sufficient to make a prima facie showing of jurisdiction. Serras v. First Tenn. Bank Nat’l Assoc.,
Although it would have been preferable for discovery to have been taken in this case, Palnik forfeited any right to discovery by not explicitly raising the issue before the district court. (Indeed, Palnik’s appellate brief does not request a remand for discovery.) To be sure, Palnik’s opposition to the defendants’ motion below could be read as asking for, in the alternative to dismissal, discovery. But, as acknowledged by Palnik at oral argument, it should not be. Instead, Palnik argued that because “responding to Defendants’ general attacks ... would require discovery into Defendants’ business and distribution relationships” and “the jurisdictional facts are inextricably intertwined with the merits of the case,” the court should allow the case to go to trial, deferring the jurisdictional decision until all facts are known. See Serras,
Palnik’s complaint fails not because he lacked sufficient information to state thе facts supporting jurisdiction or because the defendants leveraged their possession of information to hide the true facts, but because the allegations contained in his complaint were capable of multiple interpretations regarding the defendants’ involvement in the distribution of the film, at least one of which does not support personal jurisdiction in Ohio. These are not specific facts that could establish with reasonable particularity a basis for jurisdiction. Because Palnik forfeited his opportunity to request discovery, we, like the district court, cannot determine whether there is a basis for jurisdiction.
The judgment of the district court dismissing Palnik’s suit against Cineville and
Dissenting Opinion
(dissenting).
I respectfully dissent. Defendants filed their motion to dismiss for lack of jurisdiction early on — in lieu of an answer. It is clear from Palnik’s response to defendants’ motion to dismiss that he maintained that defendants “knowingly and purposefully,” “through distributors or otherwise,” distributed and sold substantial copies of the movie in Ohio. Palnik’s response to defendants’ motion to dismiss referenced his complaint’s allegations and asserted the need for discovery. Palnik argued that “responding to Defendants’ general attacks on jurisdiction would require discovery into Defendants’ business and distribution relationships,” and that if the district court were to decide not to deny defendants’ motion, the court should “defer resolution of the jurisdiction issue until trial because the jurisdictional facts are inextricably intertwined with the merits of this case.”
Under these circumstances, the district court should have read the complaint’s allegations, which included that defendants are producers and/or distributors of the infringing work, and that “Defendants have offered for sale and rental, and have distributed аnd continue to distribute, through sale, rental or otherwise, substantial numbers of copies of the Infringing Work ... in the Southern District of Ohio,” as broad enough to encompass the claim that defendants themselves, through distributors, purposefully sold the movie in Ohio. I would vacate the grant of defendants’ motion to dismiss and remand for further proceedings.