Lead Opinion
OPINION OF THE COURT
This certified interlocutory appeal, arising out of alleged unlawful price-fixing by both domestic and foreign corporations, raises questions of considerable importance in antitrust litigation involving foreign nationals. Three of the issues are of first impression to this Court. The first issue is whether worldwide service of process authorized under Section 12 of the Clayton Act, 15 U.S.C. § 22, upon foreign corporations is independent of the specific venue provision contained in that statute. The second issue is whether a federal court’s personal jurisdiction over a foreign corporation in antitrust litigation may be predicated on the foreign corporation’s contacts with the United States as a whole (national contacts analysis), rather than with the specific forum in which the court sits (local contacts analysis). The final issue is whether jurisdictional discovery from foreign nationals may proceed under the Federal Rules of Civil Procedure without first resorting to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention or Convention). 23 U.S.T. 2555, reprinted in 28 U.S.C. § 1781 Note.
The District Court denied the motions to dismiss for lack of personal jurisdiction and the joint motion for a protective order filed by two German corporations, BASF Aktiengesellschaft (BASF AG) and BASF Coatings Aktiengesellschaft (BASF Coatings) (collectively “appellants”), defendants in the underlying antitrust litigation. The District Court construed Section 12 of the Clayton Act as authorizing worldwide service of process independently of the specific venue provision contained in that statute. The Court also held that personal jurisdiction over the foreign corporations would be measured on their contacts with the United States as a whole, rather than with the forum state. The Court finally rejected a rule favoring first resort to Hague Convention procedures for jurisdictional discovery of foreign defendants. BASF AG and BASF Coatings timely appealed. We affirm.
I.
The underlying federal antitrust class litigation involves sixty-three actions filed in five states, Pennsylvania, New Jersey, Ohio, Kentucky, and Delaware, by private parties. Those actions were transferred to, and consolidated in, the United States District Court for the Eastern District of Pennsylvania for pre-trial purposes by the Judicial Panel on Multidistrict Litigation.
The appellants filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. In support of their motions to dismiss, the' appellants submitted affidavits stating that they did not have presence in the state of Pennsylvania and never sold any automotive refinish paint to any customers in Pennsylvania. The plaintiffs replied that the appropriate forum for measuring the appellants’ contacts for purposes of personal jurisdiction is the United States as a whole, rather than the forum state of Pennsylvania. The plaintiffs opposed the motions to dismiss and also served jurisdictional discovery requests pursuant to the Federal Rules of Civil Procedure, seeking production of documents concerning the appellants’ contacts with the United States as a whole.
The plaintiffs submitted publicly available information to show a threshold case of personal jurisdiction based on the appellants’ contacts with the United States and support their request for jurisdictional discovery.
The reasons proffered by the appellants’ expert, Martin Reufels, were that Germany, unlike the United States, viewed the gathering of evidence as a judicial, rather than private, function. Therefore, Germany had a sovereign interest in keeping discovery conducted within its borders in conformity with its laws. According to Reufels, compelling the appellants to produce documents pursuant to the Federal Rules of Civil Procedures would offend Germany’s sovereign interests.
In its order and careful accompanying opinion, the District Court, Surrick, J., denied without prejudice the appellants’ motions to dismiss. Rejecting the appellants’ contrary arguments, the Court construed Section 12 of the Clayton Act as authorizing worldwide service of process independently of the specific venue provision contained in that statute. The Court held that the relevant forum for purposes of proof of personal jurisdiction was the United States as a whole, rather than the
Both the District Court and this Court granted the appellants’ petition for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The appellants raise two issues for review on this interlocutory appeal. The first issue is whether a plaintiff may invoke the worldwide service of process provision contained in Section 12 of the Clayton Act and, thus, national contacts analysis, without satisfying the specific venue provision also contained in that statute. The second issue is whether a plaintiff may be permitted to seek jurisdictional discovery from foreign defendants under the Federal Rules of Civil Procedure without first resorting to the Hague Convention. We agree with the District Court and answer both in the affirmative.
II.
The first issue raised by the appellants involves two conceptually distinct, though intertwined, sub-issues. One is whether the District Court erred in ruling that the service of process provision contained in Section 12 of the Clayton Act is independent of the venue provision also contained in that statute. Two is whether the Court erred in ruling that in federal antitrust litigation, personal jurisdiction should be assessed on the basis of the appellants’ contacts with the United States as a whole (national contacts analysis), -rather than with the forum state (local contacts analysis). The two sub-issues are intertwined because if there is no specific venue limitation in federal antitrust litigation involving a foreign corporate defendant, the defendant can be. sued in any federal district court based on its aggregate contacts with the United States as a whole. Because they are intertwined and because the appellants present them as a single integrated issue, we discuss them together.
A.
Section 12 of the Clayton Act provides:
*293 Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.
15 U.S.C. § 22 (emphasis added).
Section 12, a long sentence, consists of two separate clauses, the first relating to venue and the second concerning service of process and, therefore, personal jurisdiction. It is undisputed that the second clause authorizes nationwide, indeed worldwide, service of process on a defendant corporation in federal antitrust litigation. The clause provides that the defendant may be served “wherever it may be found,” that is, wherever it is “doing business.” See, e.g., Go-Video, Inc. v. Akai Elec. Co., Ltd.,
The parties dispute whether the two clauses of Section 12 should be read as an integrated whole or independently of each other. Specifically, they dispute whether the venue provision contained in the first clause of Section 12 must be satisfied before the plaintiffs could avail themselves of the authorization of worldwide service of process contained in the second clause. As explained by one court:
[t]he dispute centers on whether the jurisdiction provision operates independently from the venue provision, specifically, whether “in such cases” in the second clause refers to “any suit, action, or proceeding under the antitrust laws against a corporation” or only to antitrust actions against corporations brought in a judicial district in which the corporation is either an “inhabitant,” “may be found” or “transacts business.” If the first interpretation is adopted, plaintiffs can rely on 28 U.S.C. § 1391(d) [the Alien Venue Statute] which provides for venue in antitrust actions against foreign corporations “in any district” and on the second clause of Section 12 for personal jurisdiction over defendants based on a minimum contacts analysis considering their contacts with the United States as a whole. If the second interpretation prevails the service provision is only effective when, pursuant to Section 12’s first clause, the action is brought in a district where the defendant resides, is found or transacts business.
In re Magnetic Audiotape Antitrust Litig.,
Currently, two sister Courts of Appeals differ as to the construction of Section 12. The plaintiff-appellees rely on the decision in Go-Video, Inc. v. Akai Elec. Co., Ltd.,
The language of the statute is plain, and its meaning seems clear: The clause before the semicolon relates to a supplemental basis for venue in actions under the Clayton Act; the clause after the semi-colon relates to nationwide service of process in antitrust cases; and invocation of the nationwide service clause rests on satisfying the venue provision.
Id. at 1350.
The GTE court “aligned” itself with the position taken by the Second Circuit forty years ago in Goldlawr, Inc. v. Heiman,
The Go-Video court did not find the language of Section 12 to be clear or unambiguous. Go-Video,
The Go-Video court found it more helpful to rely on the general interpretation that courts have given Section 12. Id. “[C]ourts have viewed the section’s main contribution to be its expansion of the bounds of venue.” Id. (citing United States v. Scophony Corp. of Am.,
The Go-Video court also relied on the Supreme Court’s case law regarding the relationship between federal venue statutes of general application and specific venue provisions contained in individual statutes to support its holding that the provision for worldwide service of process is independent of the specific venue provision in Section 12 of the Clayton Act. “[A]s a general matter, courts have interpreted special venue provisions to supplement, rather than preempt, general venue statutes.” Id. at 1409 (citing 15 Wright & Miller, supra, at 108-109) (“Supreme Court has held that special venue statutes
Of particular relevance to the Go-Video court was the Supreme Court’s discussion of the relationship between the Alien Venue Statute, 28 U.S.C. § 1391(d), a venue provision of general applicability, and the specific venue provision, 28 U.S.C. § 1400(b), concerning actions for patent infringement, in Brunette Mach. Works, Ltd. v. Kockum Indus., Inc.,
Section 1391(d) is not like other general venue provisions. Brunette held that “Section 1391(d) is not derived from the general venue statutes that [a special venue provision might otherwise be read as] intended to replace.” Id. at 713,
The approach of the Go-Video and Bucyrus-Erie courts is convincing and well reasoned in their construction of Section 12 of the Clayton Act.
B.
We also reject the appellants’ argument that the District Court does not have personal jurisdiction over them because they do not have contacts with the State of Pennsylvania. In this instance, Pennsylvania is the forum state because the underlying class actions have been transferred and consolidated for pretrial purposes.
We find support for our construction of Section 12 of the Clayton Act in the courts’ construction of Section 27 of the Securities Exchange Act of 1934. This section, modeled after Section 12 of the Clayton Act, provides in relevant part:
Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district ivherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found.
15 U.S.C. § 78aa (emphasis added). The two sections are remarkably similar in their provisions for venue and service of process.
Where Congress has spoken by authorizing nationwide service of process, ... as it has in the Securities Act, the jurisdiction of a federal court need not be confined by the defendant’s contacts with the state in which the federal court sits. See DeJames v. Magnificence Carriers, Inc.,654 F.2d 280 , 284 (3d Cir.1981). Following this reasoning, the district courts within this Circuit have repeatedly held that a “national contacts analysis” is appropriate “when appraising personal jurisdiction in a case arising under a federal statute that contains a nationwide service of process provision.” AlliedSignal, Inc. v. Blue Cross of Calif.,924 F.Supp. 34 , 36 (D.N.J.1996); see also Green v. William Mason & Co.,996 F.Supp. 394 , 396 (D.N.J.1998) (“[A]n assessment of personal jurisdiction under [a statutory provision authorizing nationwide service of process] necessitates an inquiry into the defendant’s contacts with the national forum.”). We too are persuaded by the reasoning of our prior opinions on the subject, and, consistent with several of our sister courts of appeals, hold that a federal court’s personal jurisdiction may be assessed on the basis of the defendant’s national contacts when the plaintiffs claim rests on a federal statute authoriz■ing nationwide service of process.
Pinker, at 369-70 (emphasis in original).
We agree with the holdings of our foregoing sister Courts of Appeals and the rationale of our decision in Pinker that have construed the similarly worded Section 27 of the Securities Exchange Act. We hold that personal jurisdiction in federal antitrust litigation is assessed on the basis of a defendant’s aggregate contacts with the United States as a whole. Our holding in Pinker and on this appeal is consistent
III.
The second issue certified in this appeal is whether we should adopt a first resort rule in favor of the procedures under the Hague Convention, rather than the Federal Rules of Civil Procedure, for jurisdictional discovery from foreign defendants in foreign signatory “host” nations. The appellants argue that jurisdictional discovery in Germany, a Convention signatory nation, should first proceed under the Convention procedures, rather than the Federal Rules. The Convention prescribes certain procedures by which a judicial authority in one contracting nation may request evidence located in another nation. Our Supreme Court rejected a first resort rule in favor of the Convention in a case where personal jurisdiction was not contested and the discovery sought involved only the merits of the case. Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the S. Dist. of Iowa,
Aerospatiale holds that the Hague Convention does not provide exclusive procedures for obtaining documents and information located in a foreign signatory nation’s territory. Aerospatiale first rejects a rule- of exclusive use or a rule of first use as a matter of law in favor of the Convention on the ground that neither the language nor the negotiating history of the Convention support such rules. Aerospatiale,
Aerospatiale rejects next a rule of first resort favoring the Convention on grounds of international comity and respect for the “judicial sovereignty” of the signatory nation in which evidence sought is located. Id. at 542-43,
Aerospatiale acknowledges that “both the discovery rules set forth in the Federal Rules of Civil Procedure and the Hague Convention are the law of the United States.” Id. at 533,
Notwithstanding its rejection of the first resort rule, Aerospatiale instructs the American courts to “exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position.” Id. at 546,
Aerospatiale has not explicitly addressed, however, the issue of which party bears the burden of convincing the court of an “optional” and “supplemental” use of the Convention procedures in a particular case. Nor has Aerospatiale, involving foreign defendants over whom the trial court had undisputed personal jurisdiction, addressed the issue of what procedures to follow in a case, as here, where jurisdiction is contested and discovery sought is limited only to proof of jurisdiction.
B.
The appellants arg-ue that the District Court erred in extending the Aerospatiale holding to the underlying litigation where they have contested jurisdiction and the discovery sought is limited to proof of jurisdiction. The appellants seek our review of only the District Court’s legal conclusion that the Aerospatiale holding applies equally to jurisdictional discovery. This certified issue involves a pure question of law, subject to our plenary and de novo review.
Specifically, the appellants argue that Aerospatiale is not applicable to jurisdictional discovery and that this Court should adopt a first resort rule in favor of the Hague Convention procedures based on considerations of international comity and respect for the German sovereignty, the host signatory nation where discovery is to be conducted. They argue that the Aeros-patiale balancing approach is premised expressly on the existence of personal jurisdiction in that case. Where jurisdiction is disputed and not yet established, they assert the balancing approach must yield to a rule of first resort.
The appellants stress the split of authorities among federal district courts and state courts regarding the extension of Aerospatiale to jurisdictional discovery. They cite for support Geo-Culture, Inc. v. Siam Inv. Mgmt. S.A.,
The appellants rely also on a report by the Special Commission of the Hague Conference attended, among others, by delegations from the United States and Germany. See Hague Conference on Private International Law: Special Commission Report on the Operation of the Hague Service Convention and the Hague Evidence Convention, April 1989, reprinted in 28 Int’l Law Materials 1556 (1989). The report stated that while views varied as to whether the Hague Convention “occupied the field and therefore excluded application of domestic procedural rules,” “the Commission thought that in all Contracting States, whatever their views as to its exclusive application, priority should be given to the procedures offered by the Convention when evidence located abroad is being sought.” Id. at 1564, 1569. The appellants argue that the statement in the report that “priority” should be given to the Convention should be entitled to substantial deference.
The appellants are correct that Aeros-patiale makes numerous references to the existence of personal jurisdiction in that case. We disagree, however, that the Aerospatiale holding is dependent on personal jurisdiction. As concluded by the District Court here and the District Court for the District of Columbia, which considered the same argument raised by the same defendant, BASF AG, in In re Vitamins Antitrust Litig.,
We agree with the majority of trial courts’ decisions that there should be no exception to the Aerospatiale holding for jurisdictional discovery. See In re Vitamins, at 49; Rich v. KIS California, Inc.,
Unlike Geo-Culture, relied on by the appellants, where the plaintiff failed to allege even a prima facie case of personal jurisdiction, the District Court found that the plaintiffs here had established a prima facie case of personal jurisdiction, a conclusion not challenged by the appellants. The
The appellants also relied on the Federal Rules to challenge the District Court’s personal jurisdiction. As we have stated above, it is well established that the trial court has inherent power and jurisdiction to decide whether it has jurisdiction. Ins. Corp. of Ireland,
Accordingly, the distinction drawn by the appellants between “merits” discovery and “jurisdictional” discovery, predicated on a false dichotomy of having and not having jurisdiction, amounts to no real difference because the court has jurisdiction for either type of discovery.
There are other reasons supporting our conclusion that the Aerospatiale balancing approach applies equally to the determination of whether the Hague Convention procedures should be used initially for jurisdictional discovery. First, where Aeros-patiale has categorically rejected a first resort rule for “merits” discovery, which we can expect to be more comprehensive or burdensome than jurisdictional discovery, there is more justification to reject a first resort rule for the more limited and less intrusive jurisdictional discovery. See Fishel,
Second, where Aerospatiale has rejected the first resort rule even though the French defendants there may have faced possible penal sanction under France’s “blocking statute,” there is less justification for us to adopt a first resort rule where the appellants here face no such sanction because Germany has no “blocking statute.”
Third, where Aerospatiale has rejected the adoption of a blanket first resort rule based on the proffered reasons of respecting the “judicial sovereignty” of the signatory host nation and preventing discovery abuse, the same reasons proffered by the appellants here must fail as well.
The appellants and their supporters argue generally that Germany is a civil law country where the gathering of evidence is a judicial function and that pursuing discovery without resort to the Convention may be deemed an affront to Germany’s sovereignty. The Aerospatiale Court, as well as other courts, has found such argument “unpersuasive.” Id. at 543,
We agree with the District Court’s legal conclusion that the Aerospatiale balancing test applies equally to jurisdictional discovery and that there is no first resort rule in favor of the Hague Convention procedures for jurisdictional discovery.
C.
The appellants also argue alternatively that even if the Aerospatiale balancing approach applies to jurisdictional discovery, the three-prong test would favor first use of the Convention procedures in this case. The District Court rejected that argument, ruling that the appellants bore the burden of persuasion under the balancing test and that they failed to satisfy the burden. The court concluded alternatively that even if the plaintiffs bore the burden of persuasion, they had submitted adequate evidence to show that the balancing test disfavored first use of the Convention procedures for jurisdictional discovery in this case.
We agree first with the District Court’s conclusion of law that the appellants bear the burden of persuasion as to the optional use of the Convention procedures. See Aerospatiale,
We also agree with the District Court’s conclusions that the appellants have failed to satisfy their burden of persuasion under the Aerospatiale balancing test and that the evidence on record disfavors the first use of the Convention procedures for jurisdictional discovery. The court’s conclusions in these two instances are reviewed only for abuse of discretion, and we find none.
IV.
For the foregoing reasons, the orders of the District Court certified for review on
Notes
. The defendants, in addition to the two appellants here, are: PPG Industries, Inc.; E.I. DuPont de Nemours and Company; DuPont Performance Coatings, Inc.; Sherwin-Wil-liam, Co.; Sherwin-William Automotive Finishes Corporation; Akzo Nobel Car Refinish-ers B.V., a Dutch company; Akzo Nobel Coatings, Inc., a U.S. corporation; and BASF Corporation, a U.S. corporation based in New Jersey, which is part of the BASF Group, a global network of corporations that include the two German corporations, which are the, only appellants in this interlocutory appeal.
. The District Court noted the following facts submitted by the plaintiffs: the appellants are the holders of numerous patents in the United States; in its publicly released documents, such as the forms filed with the Securities and Exchange Commission and annual reports, and its web site, BASF AG presents itself as part of a globally integrated group, BASF or BASF Group, consisting of BASF AG, the parent corporation in the group and its 153 consolidated subsidiaries; BASF AG owns 100 percent of the shares of BASF Corporation, a domestic corporation located in New Jersey; BASF AG’s publicly released documents show that it sold approximately $1.5 billion in goods to its wholly owned subsidiary, BASF Corporation, in 2000; according to BASF's website, BASF Coatings has a "significant market positionf ] in North America”; BASF Coatings maintains an office in Michigan; and according to BASF AG’s 2001 annual report, the BASF Group explicitly endorses the "exchange of staff among BASF Group companies” as being "critical” in achieving its worldwide corporate goals.
. The appellants have not appealed from the Court’s ruling that the plaintiffs have shown a prima facie case of personal jurisdiction. Accordingly, we do not review that ruling. "Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction.” In re Magnetic Audiotape Antitrust Litig.,
. The District Court has original federal question subject matter jurisdiction under 28 U.S.C. § 1331 over this class action brought under 15 U.S.C. § 1 (section 1 of the Sherman Act) and 15 U.S.C. §§ 15 and 26 (sections 4 and 16 of the Clayton Act). We have appellate jurisdiction under 28 U.S.C. § 1292(b) over this interlocutory appeal. Because the certified issues on appeal involve pure questions of law, we review the District Court's rulings de novo. Bowers v. National Collegiate Athletic Ass'n,
.The Committee to Support the Antitrust Laws, a nonprofit corporation based in the District of Columbia, has submitted an ami-cus curiae brief in support of the plaintiffs' position on the two certified issues.. The ami-cus curiae briefs in support, of the appellants’ position, submitted by the Federal Republic of Germany and the Federation of German Industries, do not. address the first certified issue.
. Section 12 permits venue in any federal district in which a corporation is an ''inhabitant,” may be "found,” or "transacts business.” Those terms are defined as follows:
Being an "inhabitant” is held to mean incorporated under the laws of that jurisdiction. E.g., Aro Manufacturing Co. v. Automobile Body Research Corp.,352 F.2d 400 , 404 (1st Cir.1965), cert. denied,383 U.S. 947 ,86 S.Ct. 1199 ,16 L.Ed.2d 210 (1966). Being "found” in a district is generally equated with "doing business” there, and requires greater contacts than does "transacting business.” E.g., Wood v. Santa Barbara Chamber of Commerce, Inc., 507 F.Supp. 1128 (D.Nev.1980); Grappone, Inc. v. Subaru of America. Inc.,403 F.Supp. 123 (D.N.H.1975); Friends of Animals Inc. v. American Veterinary Medical Ass'n,310 F.Supp. 620 (S.D.N.Y.1970).
Gen. Elec. Co. v. Bucyrus-Erie Co.,
. The Goldlawr court concluded that Section 12
specifies where suit against a corporation under the antitrust laws may be brought, namely, in a district where it is an inhabitant and also where "it may be found or transacts business.” Conversely, it should follow that if a corporation is not an inhabitant of, is not found in, and does not transact business in, the district, suit may not be so brought. By statutory grant if suit is brought as prescribed in this section "all process in such cases may be served in the district of which it (the corporation) is an inhabitant, or wherever it may be found.” Thus, "in such cases,” Congress has seen fit to enlarge the limits of the otherwise restricted territorial areas of process. In other words, the extraterritorial service privilege is given only when the other requirements are satisfied.
Goldlawr,
. Judge Stewart wrote that "the usual rules of syntax” would favor the construction of Section 12 that the service of process clause is independent of the venue clause:
The word "such” means “the aforementioned,” Webster’s Third International Dictionary (unabr. ed.1963). Thus, when "such” precedes a noun it is assumed to refer to a particular antecedent noun and any dependent adjective or adjectival clauses modifying that noun, but not to any other part of the preceding clause or sentence. Applying this rule to section 12, "in such cases” would refer to "any suit, action, or proceeding under the antitrust laws against a corporation,” and not to anything else in section 12's first clause.
. As the Supreme Court noted in United States v. Scophony Corp.,
. We are not persuaded by the conclusions drawn by the GTE and Goldlawr courts for the reasons discussed by the Go-Video and Bucyrus-Erie courts. First, because we do not find the language of Section 12 to be clear and unambiguous, we are not persuaded by the '‘plain” or "unadorned” reading of the statutory language by the GTE court. We, therefore, believe that it is necessary to consider the overall purpose of the statute in construing the statutory language. Second, we agree with the analysis made in several District Courts’ decisions that the conclusions of GTE and Goldlawr are not persuasive because the defendant corporations in those two cases were not alien corporations and were, instead, out-of-state corporations. The distinction is crucial. "The general venue provision of [28 U.S.C. § 1391(c)] governing such domestic corporations is, in contrast to [§ 1391(d)] governing alien corporations, more difficult to satisfy than the [S]ection 12 venue requirements.” Bucyrus-Erie,
. Underlying the appellants’ argument for the local contacts analysis is an assumption that the court’s personal jurisdiction is limited to the state to which the class action has been transferred. That assumption is unwarranted. Consolidation of the underlying class action in Pennsylvania is only for pretrial purposes pursuant to 28 U.S.C. § 1407. As correctly concluded by the District Court, the transferee court can exercise personal jurisdiction to the same extent that the transferor court could. See In re Agent Orange Prod. Liability Litig.,
. See, e.g., Go-Video,
. Pinker, 292 F.3d at 369-70 (citing Republic of Panama v. BCCI Holdings (Luxembourg) S.A.,
.Federal Rule of Civil Procedure 4(k)(2) provides:
If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.
"Under this provision, a defendant sued under federal law may be subject to jurisdiction based on its contacts with the United States as a whole, when the defendant is not subject to personal jurisdiction in any state. Rule 4(k)(2) confers personal jurisdiction over a defendant so long as the exercise of jurisdiction comports with the Due Process Clause of the Fifth Amendment.” Dardana,
. We note, as did the Go-Video court, that the Supreme Court has on two occasions explicitly declined to decide the constitutionality of national contacts analysis. See
. The Federal Republic of Germany and the Federation of German Industries have submitted briefs as amicus curiae in support of the appellants' position for this second issue on appeal, urging reversal of the District Court. The brief of amicus curiae submitted by the Committee to Support the Antitrust Laws supports the plaintiffs’ position, urging affirmation of the District Court.
. Jenco left undisturbed a portion of the magistrate’s opinion allowing interrogatories and document requests directed at a foreign party to proceed under the Federal Rules and overturned only the magistrate’s ruling allowing depositions to be taken under the Federal Rules.
. No one would dispute that if jurisdiction discovery yields no evidence sufficient to establish personal jurisdiction, the court must dismiss the underlying action against the appellants, rather than deciding which set of procedural rules to apply.
. Aerospatiale,
. Appellants and especially their supporters, Germany and the Federation of German Industries, stress the controversial character of the "narrow majority” decision in Aerospat-iale and profess their strong disagreement with the Aerospatiale holding that the Hague Convention procedures are merely an optional supplement to the Federal Rules. We must reject their invitation to deviate from Aeros-patiale based on the same proffered reasons, found insufficient by the Aerospatiale Court, of respecting international comity and preventing discovery abuse. As a subordinate
Concurrence Opinion
concurring.
ROTH, Circuit Judge.
I write separately to express my concern that the Hague Convention has been given short shrift since the Supreme Court’s decision in Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa,
Unfortunately, I believe the language used in Aerospatiale has unintentionally compounded the problem inherent with the Convention: that “relatively few judges are experienced in the area [of international law] and the procedures of foreign legal systems are often poorly understood.” Aerospatiale, 482 US. at 552,
Our sage colleague, Judge Joseph F. Weis, Jr., has opined that first resort to the Hague Convention is in fact appropriate:
The arguments mustered against giving priority to Convention procedures are not persuasive when balanced with the overriding interests, national and international, in more effective implementation of the Evidence Convention. It should be remembered, after all, that the treaty negotiated by the United States and the other signatories is for the benefit of private litigants as a whole — some inconvenience or expense to an individual litigant should not suffice to jeopardize an arrangement which benefits many. Moreover, through ratification, the United States has agreed to honor the commitments which the treaty contains. The judiciary should not lightly permit a private litigant to undermine express national policy.
Joseph F. Weis, Jr., The Federal Rules and the Hague Conventions: Concerns of Conformity and Comity, 50 U. Pitt. L. Rev. 903, 931 (Spring, 1989).
Judge Weis’s view mirrors the conclusions of the Special Commission of the Hague Conference of April 1989, that, whatever the views of the delegates as to application of domestic procedural rules, “priority should be given to the procedures
I recognize that we are bound by Aeros-patiale but I believe that it is time for the Supreme Court to revisit that decision— particularly because I perceive that many of our courts have not exercised the “special vigilance to protect foreign litigants” that the Supreme Court anticipated.
Finally, under the precedent of Aeros-patiale, I do not oppose the panel’s conclusion that the burden of persuasion lies with the party advocating the use of the Hague Convention. In an ideal world, however, if the treaty were to be given the priority to which its status as a ratified treaty entitles it, I do not believe that the burden of persuasion should lie with the proponent of the Hague Convention procedures.
. Judge McKee shares the concerns expressed herein and joins this concurring opinion.