Scott B. Lakin v. Prudential , 348 F.3d 704 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2477
___________
Scott B. Lakin, Director of the *
Department of Insurance for the *
State of Missouri, in his statutory *
capacity as Liquidator of International *
Financial Services Life Insurance *
Company; George Dale, Commissioner *
of Insurance for the State of *
Mississippi, in his statutory capacity *
as Liquidator of Franklin Company *
Family Guarantee Life Insurance *
Company, and First National Life *
Insurance Company of America; *
Anne B. Pope, Commissioner of *
Commerce for the State of Tennessee * Appeal from the United States
in her statutory capacity as a * District Court for the
Liquidator of Franklin American * Western District of Missouri.
Life Insurance Company; Carroll *
Fisher, Insurance Commissioner for *
the State of Oklahoma, in his statutory *
capacity as Receiver of Farmers *
and Ranchers Life Insurance Company *
in Liquidation, *
*
Appellants, *
*
v. *
*
Prudential Securities, Inc.; Prudential *
Investments, Inc., *
*
Appellees. *
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Submitted: December 12, 2002
Filed: November 4, 2003
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Before BOWMAN, RILEY, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Appellants filed suit in Missouri state court, alleging claims of negligence,
breach of contract, and breach of fiduciary duties. After removal, Appellee Prudential
Savings Bank ("Prudential Savings") moved for dismissal for lack of personal
jurisdiction. Appellants resisted the motion and filed a request for jurisdictional
discovery. The district court then granted Prudential Securities' motion and denied
appellants' request. We affirm in part, reverse in part, and remand for jurisdictional
discovery.
I.
Beginning in 1991 a group of individuals–including Martin Frankel, John
Hackney, Gary Atnip, and others–acquired and ran several insurance companies.
After acquiring the companies, they allegedly engaged in an elaborate looting
scheme, which converted and misappropriated the assets and funds of these insurance
companies. The insurance companies are now insolvent and in receivership.
Appellants serve as the court-appointed receivers of these insurance companies,
which are located in their respective states–Missouri, Mississippi, Tennessee, and
Oklahoma.
Appellee Prudential Savings is a federally-chartered savings bank. Its principal
place of business and its home office are located in the State of Georgia. In December
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1998, as part of the scheme, Hackney opened a custody account at Prudential Savings
on behalf of Franklin American Life Insurance Company ("FAL"), a Tennessee-
domiciled insurance company. On December 28, 1999, the account received a deposit
of approximately $69 million; allegedly that money was later transferred to another
bank account in Tennessee and then to Frankel's Swiss bank account.
After the alleged fraud was exposed and the insurance companies went
insolvent, appellants filed a complaint against Prudential Savings and others1 in
Missouri state court. In pertinent part, the suit alleged that Prudential Savings was
negligent and breached its contractual and fiduciary duties to FAL when it allegedly
permitted the $69 million to be released to Frankel without proper instruction from
FAL's officers. After the suit was filed, the case was removed to the United States
District Court for the Western District of Missouri.
Prudential Savings then filed a motion to dismiss for lack of personal
jurisdiction, arguing that it has only one physical office–located in Georgia–and that
it has virtually no contact with Missouri residents. Appellants countered that from
December 1998 to June 2001, Prudential Savings did have sufficient contacts with
the State of Missouri. Appellants noted that Prudential Savings maintained home-
equity loans and lines of credit to Missouri residents totaling around $10 million, or
one percent of its loan portfolio. In addition, appellants noted that Prudential Savings
maintained a Web site–www.prudential.com/banking2–on which Prudential Savings'
services are offered to Missouri residents. As an alternative, appellants requested
1
Appellants also sued Prudential Securities, Inc. and Prudential Investments,
Inc. Prudential Securities is headquartered in New York, while Prudential
Investments does business in Missouri. Neither challenged personal jurisdiction.
2
As of October 2001, the Prudential Web site was located at www.prufn.com.
This address now automatically redirects users to Prudential's current Web site–www.
prudential.com
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leave for jurisdictional discovery. The district court, however, disagreed with
appellants, granted Prudential Services' motion to dismiss, and denied appellants'
motion for jurisdictional discovery. For the reasons stated below, we affirm in part,
reverse in part, and remand for jurisdictional discovery.
II.
We review de novo whether appellants have presented a prima facie case3 of
personal jurisdiction, viewing the evidence in the light most favorable to the
appellants and resolving all factual conflicts in their favor. Pecoraro v. Sky Ranch for
Boys, Inc., 340 F.3d 558, 561 (8th Cir. 2003). As we sit in diversity for this suit, our
analysis of personal jurisdiction involves two steps. We first must consider whether
the State of Missouri would accept jurisdiction under the facts of this case.
Sondergard v. Miles, Inc., 985 F.2d 1389, 1392 (8th Cir. 1993). Then, we must
determine whether that exercise of jurisdiction comports with Constitutional Due
Process restrictions. Id.A. Jurisdiction
The Supreme Court has noted that states exercise two broad types of personal
jurisdiction: specific jurisdiction and general jurisdiction. Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8–9 (1984). Specific jurisdiction
refers to jurisdiction over causes of action that "arise out of" or "relate to" a
defendant's activities within a state. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985). General jurisdiction, "on the other hand, refers to the power of a state to
adjudicate any cause of action involving a particular defendant, regardless of where
the cause of action arose." Sondergard, 985 F.2d at 1392 (citation omitted); see also
Helicopteros, 466 U.S. at 414 & n.9.
3
In order to survive a motion to dismiss for lack of personal jurisdiction,
appellants need only make a prima facie showing of personal jurisdiction over
Prudential Savings. Digi-Tel Holdings, Inc. v. Proteq Telecomm. (PTE), Ltd., 89 F.3d
519, 522 (8th Cir.1996).
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Appellants first argue that they have established a prima facie case of specific
jurisdiction. However, a prima facie case of specific personal jurisdiction can only be
established if Prudential Savings "has purposefully directed [its] activities at
[Missouri] residents," and the claim of this suit either "arises out of" or "relates to"
these activities. Burger King, 471 U.S. at 472 (citation omitted); see also State ex rel.
Newport v. Wiesman, 627 S.W.2d 874, 876 (Mo. 1982) (en banc) (extending the
Missouri long-arm statute to the extent permissible under the Due Process Clause).
Here, the cause of action alleged–that Prudential Savings was negligent and breached
its contractual and fiduciary duties to FAL–is entirely unrelated to Prudential
Securities' activities in Missouri. Rather, the cause of action "arises out of" and
"relates to" activities in the State of Tennessee. As a result, appellants' argument for
specific jurisdiction fails.
Appellants next argue that the facts of this case–specifically Prudential
Securities' Web site and its home-equity loans and lines of credit to Missouri
residents4–are sufficient to establish general jurisdiction over Prudential Securities.
Thus, we must examine whether Missouri "has authorized the exercise of general
jurisdiction over non-resident corporations, and whether it would apply the doctrine
in this case." Sondergard, 985 F.2d at 1392.
The Missouri Supreme Court has long held that a "foreign corporation present
and conducting substantial business in Missouri" is subject to the jurisdiction of
Missouri courts. State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 167 (Mo.
1999) (en banc) (citing cases holding the same from 1907 forward). Missouri courts
have interpreted the phrase "present and conducting substantial business" to mean
that jurisdiction will be established if a non-resident corporation has "substantial" and
4
Appellants also cite a third factor–Mo. Rev. Stat. § 351.572.2 (2000)–as a
reason to support general jurisdiction over Prudential Securities. We find this
argument to be misplaced and without merit.
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"continuous" contacts with the State of Missouri.5 Sloan-Roberts v. Morse Chevrolet,
Inc., 44 S.W.3d 402, 409 (Mo. Ct. App. 2001) (citing Int'l Shoe Co. v. Washington,
326 U.S. 310, 318 (1945); see also Shouse v. RFB Constr. Co., Inc., 10 S.W.3d 189,
193 (Mo. Ct. App. 1999). This is identical to the federal due process requirements.
See Int'l Shoe, 326 U.S. at 318; see also Helicopteros, 466 U.S. at 415; Perkins v.
Benguet Consol. Mining Co., 342 U.S. 437, 445 (1952).
Having determined that Missouri courts have authorized general jurisdiction,
we must now determine if a Missouri court would apply the doctrine in this case.
Generally, Missouri courts–like most courts–are hesitant to "exercise general
jurisdiction over non-resident defendants." Sloan-Roberts, 44 S.W.3d at 410; see also
Davis v. Baylor Univ., 976 S.W.2d 5, 7–8 (Mo. Ct. App. 1998). Nevertheless, after
reviewing the relevant factors and the applicable law, we conclude that appellants
could establish a case of general personal jurisdiction if they are permitted to take
jurisdictional discovery on remand.
1. Business Contacts
First, from December 1998 to June 2001, Prudential Savings maintained home-
equity loans and lines of credit to persons in Missouri. These contacts are continuous.
Home-equity loans and lines of credit are not single point-of-sale transactions.
5
It bears mentioning that several district courts in our Circuit have previously
come to the puzzling conclusion that "the Missouri long-arm statute prohibits the
exercise of general personal jurisdiction over a nonresident defendant." United Mo.
Bank, N.A. v. Bank of N.Y., 723 F. Supp. 408, 411 (W.D. Mo. 1989); see also
Wooldridge v. Beech Aircraft Co., 479 F. Supp. 1041 (W.D. Mo. 1979). To spare
future courts any confusion, we hold today that such cases were erroneously decided.
Other courts agree. In re Tex. Prisoner Litig., 41 F. Supp. 2d 960, 962 (W.D. Mo.
1999); see also K-Mart, 986 S.W.2d at 168 n.3 ("If the Bank of New York case is read
to limit general jurisdiction based upon activities in Missouri, the case may be
inconsistent with some of our precedents.").
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Rather, the terms of these loans are typically measured in months and years–creating
continuous long-term contacts with the State of Missouri.
Appellants also argue that these business contacts are substantial because they
total approximately $10 million. Prudential Securities counters that the home-equity
loans and lines of credit only makes up one percent of their total loan portfolio. They
therefore reason that the contacts should be considered insubstantial to establish
general jurisdiction.6 While Missouri courts have not commented on whether
percentages of a non-resident corporation's total business in a forum state should be
given special consideration in this determination, at least one of our sister circuits has
directly addressed this issue. Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Assoc.,
819 F.2d 434, 437–38 (3d Cir. 1987) (dealing with this issue in a very similar factual
scenario).7
6
Prudential Securities also argues that these contacts are insubstantial because
it has no offices, employees, or registered agents in the State of Missouri.
7
Other circuits, while not addressing this issue directly, have considered the
percentage of a company's total business as just one of the factors to consider in a
general personal jurisdiction analysis–with varying results. Compare Provident, 819
F.2d at 437–38; Mich. Nat'l Bank v. Quality Dinette, Inc., 888 F.2d 462, 465–66 (6th
Cir. 1989) (furniture machine manufacturer, whose sales in Michigan accounted for
three percent of its total sales when combined with other factors were sufficient
contacts for general jurisdiction); Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072,
1074, 1076–79 (9th Cir. 2003) (general jurisdiction found where defendant's sole
contacts were its Internet Web site and sales in the State of California, which
accounted for six percent of its total sales) with Dalton v. R & W Marine, Inc. 897
F.2d 1359, 1362 (5th Cir. 1990) (company's ownership of several boats in the state,
which accounted for thirteen percent of its total revenues, were insufficient for
general jurisdiction); Nichols v. G.D. Searle & Co., 991 F.3d 1195, 1200 (4th Cir.
1993) (company who had two percent of total sales in Maryland when combined with
other factors did not have sufficient contacts for general jurisdiction); Stairmaster
Sport/Med. Prod. Inc., 916 F. Supp. 1049, 1052–53 (W.D. Wash. 1995), aff'd 78 F.3d
602 (Fed. Cir. 1996) (mem.) (no general jurisdiction for company that had isolated
visits and three percent of its total sales volume in Washington).
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In Provident, Pennsylvania-based plaintiff Provident sued defendant California
Federal in Pennsylvania. Id. at 435. California Federal, a federally-chartered bank,
whose headquarters were located in California, had 138 branch offices in California,
thirty-seven in Florida, thirteen in Georgia, and six in Nevada, but no branches in
Pennsylvania. Id. at 436. Moreover, it "maintained no Pennsylvania office,
employees, agents, mailing address, or telephone number. It had not applied to do
business in Pennsylvania, did no advertising in Pennsylvania, and paid no taxes
there." Id. During the relevant period, California Federal had about $10 million in
outstanding loans with Pennsylvania residents. Id. This, however, only amounted to
.083% of California Federal's total loan portfolio of $12 billion. Id. California Federal
also had Pennsylvania depositors, whose total deposits amounted to around $10
million, or .071% of its total deposits.
California Federal argued that the action should be dismissed for lack of
general personal jurisdiction. It further argued that if a company does a small
percentage of its business in a state, then such percentage should create a presumption
for a lack of jurisdiction. The Court of Appeals disagreed, noting that "the size of the
percentage of California Federal's total business represented by its Pennsylvania
contacts is in general irrelevant . . . ." Id. at 438; see also Gehlin v. St. George's
School of Medicine, Ltd., 773 F.2d 539, 543 (3d Cir. 1985) (stating the same, but
finding no jurisdiction). Likewise, it did not find the "absolute amount of dollars"
completely persuasive. Instead, it found more convincing the nature of the deposits
and the fact that the loans and deposits were "central to the conduct of its business."
Id. Finally, the court found significant the fact that California Federal "can become
the owner of a loan secured by property in Pennsylvania. . . ." Provident, 819 F.2d at
438 (citation omitted).
We agree. Percentage of a company's sales in a given state are generally
irrelevant. Instead, our focus is on whether a defendant's activity in the forum state
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is "continuous and systematic." Helicopteros, 466 U.S. at 414. Many companies
conduct millions of dollars in sales worldwide yet only do a small percentage of their
sales in any one state. E.g., L.L. Bean, Inc., 341 F.3d at 1074 (sales in California for
L.L. Bean, Inc. only accounted for six percent of its total sales). However, our
relevant inquiry is not whether the percentage of a company's contacts is substantial
for that company; rather, our inquiry focuses on whether the company's contacts are
substantial for the forum.
As the record stands, Prudential Securities' contacts are substantial. Prudential
Securities has nearly $10 million in its Missouri loan portfolio. Because home-equity
loans and lines of credit can represent indebtedness of as little as a few thousand
dollars,8 $10 million in such loans can represent the establishment of lending
relationships with hundreds, if not thousands of Missouri residents. Moreover, it is
noteworthy that home-equity loans and lines of credit are "central to the conduct of
[Prudential Securities'] business." Provident, 819 F.2d at 438. While it is true that the
loans were made in Georgia, it is likely that such loans are secured with Missouri
residents' property, which was used as collateral for the loan. See Mo. Rev. Stat. §
443 et seq. If this is true, then Prudential Security will have liens on hundreds to
thousands of pieces of real property in Missouri and the power to use Missouri courts
to enforce them. See Mo. Rev. Stat. §§ 443.190, 443.290. However, it is unclear from
the record if this is the case. Appellants must be permitted to have the opportunity to
establish these facts through jurisdictional discovery.
8
See Cathy Lesser Mansfield, The Road to Subprime "HEL" Was Paved with
Good Congressional Intentions: Usury Deregulation and the Subprime Home Equity
Market, 51 S.C. L. Rev. 473, 523 (2000) (stating that by 1994 about 8.2 million
households had "home equity debt totaling about $255 billion" (equaling an average
of over $30,000 per household)); cf. I.R.C. §163(h)(3) (capping the amount of interest
deduction on a home-equity loan at $100,000; $50,000 in the case of a separate return
by a married individual)).
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2. Internet Contacts
Second, appellants assert that Prudential Securities' Web site should render it
subject to general jurisdiction. Missouri courts have not yet addressed whether a Web
site may provide sufficient "minimum contacts" to invoke personal jurisdiction.9
Neither have we. However, many of our sister circuits have. Unfortunately, the
majority of these cases address whether a Web site can provide sufficient contacts to
invoke specific jurisdiction. E.g., Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446,
(3d Cir. 2003) (specific jurisdiction in trademark infringement case); ALS Scan, Inc.
v. Digital Serv. Consult., Inc., 293 F.3d 707 (4th Cir. 2002) (same); Bensusan Rest.
Corp. v. King, 126 F.3d 25 (2d Cir. 1997) (same); Cybersell, Inc., v. Cybersell, Inc.,
130 F.3d 414 (9th Cir. 1997) (same); CompuServe, Inc. v. Patterson, 89 F.3d 1257(6th Cir. 1996) (same); see also Young v. New Haven Advocate, 315 F.3d 256 (4th
Cir. 2002) (specific jurisdiction for defamation action).
The great majority of these cases have adopted the analytical framework of
Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa.
1997). In Zippo–also a case of specific jurisdiction–the court examined the few cases
that had previously addressed the issue of whether a Web site could provide sufficient
contacts for specific personal jurisdiction. It applied the results of these cases to the
traditional personal jurisdiction analytical framework, noting that "the likelihood that
personal jurisdiction can be constitutionally exercised is directly proportionate to the
nature and quality of the commercial activity that an entity conducts over the
Internet." 952 F. Supp. at 1124. In order to measure the nature and quality of the
9
In one opinion, however, the Missouri Court of Appeals mentioned the level
of interactivity of a Web site–apparently alluding to the Zippo test. See State ex rel.
Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828, 830, 835 (Mo. Ct. App. 2000) ("In the
summer and fall of 1997, Beer Nuts' website fell in the middle range of websites
accessible on the web in terms of its sophistication and interactivity."). As it appeared
only in the factual summary, however, it played no part in the court's specific personal
jurisdiction determination. Thus, it is not binding upon us.
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commercial activity, the court created a "sliding scale" to measure the likelihood of
personal jurisdiction. It noted:
At one end of the spectrum are situations where a defendant clearly does
business over the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is
proper. At the opposite end are situations where a defendant has simply
posted information on an Internet Web site which is accessible to users
in foreign jurisdictions. A passive Web site that does little more than
make information available to those who are interested in it is not
grounds for the exercise [of] personal jurisdiction. The middle ground
is occupied by interactive Web sites where a user can exchange
information with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the
Web site.
Id. (citations omitted).
We agree with our sister circuits that the Zippo model is an appropriate
approach in cases of specific jurisdiction–i.e., ones in which we need only find
"minimum contacts." However, we are presented with a case of general personal
jurisdiction–i.e., one in which we must find "substantial and continuous" contacts.
The circuits that have addressed which analytical model to apply to a case of general
jurisdiction have split on whether to accept the Zippo "sliding scale." Compare L.L.
Bean, 341 F.3d at 1079 (applying Zippo and finding general jurisdiction); Gorman
v. Ameritrade Holding Corp., 293 F.3d 506, 513 (D.C. Cir. 2002) (same); Soma Med.
Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1296–97 (10th Cir. 1999) (applying
Zippo, but finding no general jurisdiction) with Revell v. Lidov, 317 F.3d 467, 471
(5th Cir. 2002) (noting that the Zippo sliding scale "is not well adapted to the general
jurisdiction inquiry"); Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp.2d
1082, 1091 (E.D. Mo. 2001) (noting that while the "sliding scale suggested by the
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court in Zippo may be a relevant factor in assessing general jurisdiction, it is not alone
determinative") (footnote omitted).
We agree with the courts that do not apply the "sliding scale" presumptively
for cases of general jurisdiction. Certainly, we believe that a consideration of the
"nature and quality" of a Web site and a determination of whether it is "interactive,"
"does business," or is merely "passive" is an important factor in our analysis.
However, we have long held that the "nature and quality" of contacts is only one
factor to consider. Instead, we consider a variety of factors–depending on the
circumstance–in a personal jurisdiction analysis. Aftanse v. Econ. Baler Co., 343 F.2d
187, 197 (8th Cir. 1965) (creating the five factors to consider for personal jurisdiction
and applying them depending on their relevance to the case).
We first discussed the factors in Aftanse. In this 1965 case, Judge Harry
Blackmun10 analyzed and summarized the controlling United States Supreme Court
cases on the subject of personal jurisdiction. Id. at 195–96 (summarizing Hanson v.
Denckla, 357 U.S. 235 (1958); McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957);
Perkins, 342 U.S. at 437; Travelers Health Ass'n v. Virginia ex rel. State Corp.
Comm'n, 339 U.S. 643 (1950); Int'l Shoe, 326 U.S. at 310). Judge Blackmun then
observed that each of these cases established "general" instead of "precise
guidelines," but that each of the cases had several factors, which the Supreme Court
repeatedly identified. Id. at 197. Specifically, Judge Blackmun noted that:
[A]t one time or another in the opinions, three primary factors, namely,
the quantity of the contacts, the nature and quality of the contacts, and
the source and connection of the cause of action with those contacts, are
stressed, and that two others, the interest of the forum state and
convenience of the parties, receive mention.
10
Prior to assuming his seat as an Associate Justice of the United States
Supreme Court, Justice Blackmun served as a judge on this Court.
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Id. It is apparent that the primary factors relate to our consideration of a defendant's
contacts.11 At a minimum, in a specific jurisdiction case we will consider the last two
of the primary factors–"the nature and quality of the contacts, and [their] source and
connection" to "the cause of action." In such a case, the Zippo test would function
appropriately. However, in a general jurisdiction case, we do not consider the "source
and connection" to "the cause of action," but rather we consider the "nature and
quality of the contacts" as well as the "quantity of the contacts." Bell Paper Box, Inc.
v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994) (citations omitted) (distinguishing
general jurisdiction from specific jurisdiction). This is precisely why the Zippo test
alone is insufficient for the general jurisdiction setting.
Under the Zippo test, it is possible for a Web site to be very interactive, but to
have no quantity of contacts. In other words, the contacts would be continuous, but
not substantial. This is untenable in a general jurisdiction analysis. As one court has
noted, the Zippo test "is not well adapted to the general jurisdiction inquiry, because
even repeated contacts with forum residents by a foreign defendant may not constitute
the requisite substantial, continuous and systematic contacts required for a finding of
general jurisdiction . . . ." Revell, 317 F.3d at 471. As a result, we will first apply the
Zippo test and then also look at the quantity of those contacts with Missouri residents.
Prudential Securities' Web site–www.prudential.com/banking–falls under the
middle category of Zippo–a sophisticated, interactive Web site in which a user can
exchange information with the host computer. Not only can Missouri consumers
review detailed company, service, and financial information about Prudential
Savings, they can also exchange electronic mail; establish and access secure online
accounts; and calculate home-mortgage rates. More importantly, Missouri consumers
11
It is equally apparent that the secondary factors, i.e., "the interest of the
forum state and convenience of the parties" relate to our consideration of "traditional
notions of fair play and substantial justice" in our reasonableness analysis. We
consider these factors in Part II.B, infra.
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are also able to complete online applications for home-equity loans and lines of
credit. The site states that it provides electronic responses to the inquiry within three
to five business days. Through its Web site Prudential Savings could have
continuous, significant contacts with Missouri residents. In fact, because its site is
available twenty-four hours a day, it is possible for Prudential Securities "to have
contacts with the [State of Missouri] that are 'continuous and systematic' to a degree
that traditional foreign corporations can never even approach." Gorman, 293 F.3d at
513.
However, this is not sufficient for general jurisdiction. As noted, we must also
consider the quantity of contacts that Prudential Securities'–through its Web site–has
with Missouri residents. However, appellants were unable to conduct jurisdictional
discovery prior to the district court's grant of Prudential Savings' motion to dismiss.
As a result, the record contains no indication of: the number of times that Missouri
consumers have accessed the Web site; the number of Missouri consumers that have
requested further information about Prudential Savings' services; the number of
Missouri consumers that have utilized the online loan-application services; the
number of times that a Prudential Savings representative has responded to Missouri
residents after they have applied for a loan; the number and amounts of home-equity
or other loans that resulted from online-application submission by Missouri
consumers, or which are secured by Missouri property.
Appellants did make such a motion. The district court, however, denied it. To
not grant it was, in our view, an abuse of discretion. Gen. Elec. Capital Corp. v.
Grossman, 991 F.2d 1376, 1388 (8th Cir. 1993) (applying an "abuse of discretion"
standard when reviewing the denial of a request for jurisdictional discovery); see also
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402–03 (4th
Cir. 2003) (same standard of review in an Internet personal jurisdiction case); Harris
Rutsky & Co. Ins. Servs., v. Bell & Clements, Ltd., 328 F.3d 1122, 1135 (9th Cir.
2003) (same standard of review and remanding for further jurisdictional discovery);
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Toys "R" Us, Inc., 318 F.3d at 455–58 (same standard of review and remanding for
further jurisdictional discovery in an Internet personal jurisdiction case); Gorman,
293 F.3d at 513 (affirming on a different issue, but noting that it would otherwise
remand for jurisdictional discovery in an Internet personal jurisdiction case); Shouse,
10 S.W.3d at 194–95 (Missouri appellate court remanding for jurisdictional
discovery). As a result, if appellants can meet the second factor–i.e., the due process
inquiry–then remand to the district court for further jurisdictional discovery is the
appropriate disposition for this case.
B. Due Process
Regardless of the number of contacts to support general jurisdiction, we will
only reverse the order of the district court if the assertion of jurisdiction would be
reasonable and not offend notions of "fair play and substantial justice." Int'l Shoe, 326
U.S. at 316. In making this determination, we must consider "the burden on
[Prudential Securities], the interests of [Missouri], and the [appellants'] interest in
obtaining relief." Asahi Metal Indus. Co., Ltd. v. Superior Ct. of Cal., 480 U.S. 102,
113 (1987); Schilling v. Hum. Supp. Serv., 978 S.W.2d 368, 371 (Mo. Ct. App. 1998).
Additionally, we must also weigh "the interstate judicial system's interest in obtaining
the most efficient resolution of controversies; and the shared interest of the several
States in furthering fundamental substantive social policies." Asahi Metals, 480 U.S.
at 113 (citation omitted); Schilling, 978 S.W.2d at 371.
A consideration of these factors demonstrates that there is adequate evidence
in the record to conclude–if minimum contacts are present–that asserting jurisdiction
over Prudential Securities would not violate due process. First, Missouri has a
significant interest in giving insolvent insurance companies a forum in which to
litigate their claims. Moreover, while it might be a burden for Prudential Securities
to have to travel to Missouri, given the nature of this litigation, it does not seem
overly burdensome. This litigation involves eight defunct insurance companies, who
are fighting over twenty-two accounts from four different states. However, as alleged
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by appellants, the underlying evidence for each is the same; each of the accounts was
managed by the same broker. As a result, it would be a waste of judicial resources to
have the parties relitigate this single insurance claim again in Georgia. It is much
more efficient for all parties to have the litigation centered in one location. Therefore,
as the record stands, the exercise of general jurisdiction does not offend "notions of
fair play and substantial justice." However, it is possible that on remand other facts
might come to light, which would require a different result.
III.
We therefore affirm the district court's ruling that it lacked specific jurisdiction
over Prudential Securities, reverse its ruling on general jurisdiction, and remand this
matter to the district court for jurisdictional discovery and proceedings consistent
with this opinion.
_______________________________
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