explaining where the defendants "have voluntarily appeared in the court to challenge jurisdiction and jurisdictional discovery is pending, the District Court indisputably has jurisdiction to determine whether there is personal jurisdiction upon completion of jurisdictional discovery”
How later courts described this case
- explaining where the defendants "have voluntarily appeared in the court to challenge jurisdiction and jurisdictional discovery is pending, the District Court indisputably has jurisdiction to determine whether there is personal jurisdiction upon completion of jurisdictional discovery”
- finding that nationwide service of process is appropriate under the Clayton Act if the defendant has sufficient minimum contacts with the United States
- affirming the district court’s finding that the “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.”
- explaining that for MDL cases courts conducting personal contacts analysis must look to contacts with forum where case was filed
Written by the judges who cited it.
The opinion
ROTH, Circuit Judge,
concurring. 21
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, 482 U.S. 522 , 107 S.Ct. 2542 , 96 L.Ed.2d 461 (1987). The service provisions of the Hague Convention were adopted by the President and approved by a unanimous vote of the Senate in 1972. Id. at 530 , 107 S.Ct. 2542 . The provisions then became the “law of the land,” coexisting with other federal law such as the Federal Rules of Civil Procedure. U.S. Const. art. VI, cl. 2. In Aerospatiale, the Hague Convention was referred to as a “permissive supplement” and an “optional procedure.” Id. at 536, 107 S.Ct. 2542 . However the Hague Convention is only as “optional” as deciding to use the Federal Rules is “optional” in such a case. The Convention does not overwrite the Federal Rules of Civil Procedure, but it is in no way inferior to them.
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, 107 S.Ct. 2542 (Blackmun, J., dissenting). Many times, rather than wade through the mire of a complex set of foreign statutes and case law, judges marginalize the Convention as an unnecessary “option.” I believe the Aerospatiale decision should be reexamined to ensure that lower courts are in fact exercising “special vigilance to protect foreign litigants” and demonstrating respect “for any sovereign interest expressed by the foreign state.” Id. at 546, 107 S.Ct. 2542 Currently, I fear that many courts are simply discarding the treaty as an unnecessary hassle.
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 *307 offered by the Convention when evidence located abroad is being sought.” Hague Conference of 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, 1569 (1989). Among the delegates at the 1989 meeting of the Special Commission was one from the United States.
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.