The opinion of the court was delivered by: DONALD WILKERSON, Magistrate Judge
This matter is before the Court on the Motion for Discovery on
Issue of Personal Jurisdiction filed by the Plaintiff, Larry
Morris, on October 26, 2005 (Doc. 24). The motion is DENIED.
The Plaintiff seeks to conduct discovery in order to respond to
a motion to dismiss in which the Defendants assert that this
Court does not have personal jurisdiction over the Defendants. On
November 4, 2005, this Court conducted a telephonic conference on
the motion and the anticipated discovery that the Plaintiff
wished to pursue. At that conference, the Court required the
Plaintiff to fax his discovery requests and the Defendant to fax
their objections. This matter was then set for a telephonic
discovery dispute conference to occur on November 16, 2005. At
the November 4, 2005 conference, however, the Defendants raised
the issue of whether the Plaintiff has some initial burden prior
to a Court Order mandating that they respond to discovery
concerning personal jurisdiction. At the time, the Court
indicated that no such burden existed and that the Court had the
jurisdiction to determine whether there was jurisdiction and that
mandating discovery on the issue was a logical extension.
Upon further reflection, this Court re-evaluated that
assessment in an order dated November 8, 2005. That order indicated that the Plaintiff must
meet a prima facie burden prior to subjecting the Defendants to
discovery in this matter. This conclusion was based, primarily,
on Central States, Southeast and Southwest Areas Pension Fund v.
Reimer Express World Corporation, 230 F.3d 934 (7th Cir.
2000). This Court further set this matter for an in-court hearing
on the Plaintiff's motion on November 16, 2005. The parties were
instructed to supplement their briefs and address the Plaintiff's
burden prior to the discovery being conducted. The Plaintiff and
Defendants also were instructed to submit to chambers their
discovery requests and objections, respectively.*fn1
On November 15, 2005, the Plaintiff, in lieu of supplementing
his brief, filed a "Response to this Court's November 8, 2005
order concerning Plaintiff's motion for personal jurisdiction
discovery." In this response, the Plaintiff first argued that
District Judge Michael J. Reagan already had mandated that
discovery take place in an order which extended the time in which
the Plaintiff had to respond to the Defendants' pending motion to
dismiss (Doc. 30). Second, the Plaintiff argued that state law
governed whether or not they may conduct discovery. Third, the
Plaintiff took exception to this Court's reliance on Central
States. This Court construed this "response" as a motion for
reconsideration which was denied by an order dated November 15,
2005 (Doc.35). In the Defendants' supplemental brief, they argued
that the Plaintiff has only offered speculation in support of his
request for discovery (Doc. 36).
At the hearing, held on November 16, 2005, the parties made
various arguments. The Plaintiff also submitted two exhibits: the
first is an affidavit signed by the Plaintiff, Larry Morris, and dated November 16, 2005; the second exhibit is a draft second
amended complaint. Prior to the hearing, the Defendant, Robin
Lynne, Inc., further indicated that it was adopting the arguments
and objections made by the other Defendants, Ralph Helton and MJH
The Plaintiff made a brief argument that this issue is governed
by Illinois state law. Specifically, the Plaintiff pointed to
Illinois Supreme Court Rule 201(l) which states that: "(1) While
a motion filed under section 2-301 of the Code of Civil Procedure
is pending, a party may obtain discovery only on the issue of the
court's jurisdiction over the person of the defendant. . . ."
This Rule refers to Illinois Code of Civil Procedure 5/2-301
which provides that, prior to the filing of a responsive
pleading, a party may file a motion objecting to the Court's
exercise of personal jurisdiction. 735 ILL. COMP. STAT.
5/2-301(a). The Plaintiff asserted that this is a substantive
rule of law and therefore governs this diversity action. This
argument is without merit. Discovery in federal court is governed
by the Federal Rules and law. The Plaintiff advocates a position
without the benefit of any citation to authority.*fn2 The
issue of whether this Court will permit discovery is left to the
discretion of this Court and is not mandated by rules that govern
the Illinois Courts.
Judge Reagan's November 2, 2005 Order
The Plaintiff next argues that Judge Reagan already has allowed
for discovery to take place. The Plaintiff relies on the
following order: ORDER granting 23 Motion to Stay: The Court GRANTS
Plaintiff Morris' motion to stay briefing (Doc. 23),
will permit a 60-day stay of the briefing period, and
thus EXTENDS to JANUARY 3, 2006 the deadline by which
Plaintiff must file his response to Defendants'
pending motions (Docs. 14 and 19). The Court intends
to rule on those motions immediately thereafter and
will permit no further extensions of the briefing
deadline. Until the Court has determined (via
resolution of the pending motions) whether it can
exercise personal jurisdiction herein, no dispositive
motions can be ruled on, and none should be filed.
Signed by Judge Michael J. Reagan on 11/2/05.
This order does not mention discovery nor did Judge Reagan rule
on the Plaintiff's separately filed motion to conduct discovery.
As such, this argument is also without merit.
In Central States, the Seventh Circuit had occasion to
determine whether discovery was appropriate in a similar
situation to the one presented before this Court. The Plaintiff
in Central States sought to conduct discovery in order to
determine whether the Court had personal jurisdiction over
Canadian companies. In upholding the District Court's denial of
the proposed discovery, the Court of Appeals stated:
At a minimum, the plaintiff must establish a
colorable or prima facie showing of personal
jurisdiction before discovery should be permitted.
Foreign nationals usually should not be subjected to
extensive discovery in order to determine whether
personal jurisdiction over them exists. We review the
district court's denial of discovery on this issue
for abuse of discretion.
Id. 230 F.3d at 947 (citations omitted).
The Court of Appeals specifically highlighted that the District
Court did not abuse its discretion in finding that the discovery
requests were irrelevant and that requiring "burdensome,
wide-ranging discovery against defendants from a foreign nation"
in order to determine relevant contacts with the forum state "is
not appropriate at a stage where the district court is trying to determine whether it has any power over the defendants." Id. at
947. Of course, the defendants here are not, presumably, wholly
foreign corporations. However, the principle would still apply:
this Court will not mandate potentially expensive and protracted
discovery without a prima facie showing that personal
jurisdiction exists. As Judge Cosbey has noted:
A plaintiff must make a threshold or prima facie
showing with some competent evidence demonstrating
that personal jurisdiction might exist over a
defendant in order to be entitled to jurisdictional
discovery. . . . This standard is quite low, but a
plaintiff's discovery request will nevertheless be
denied if it is only based upon "bare," "attenuated,"
or "unsupported" assertions of personal jurisdiction,
or when a plaintiff's claim appears to be "clearly
Andersen v. Sportmart, Inc., 179 F.R.D. 236,
241-242 (N.D. Ind. 1998) (citations omitted).
See Ellis v. Fortune Seas, LTD, 175 F.R.D. 308, 312 (S.D.
Ind. 1997); See also Carefirst of Maryland, Inc. v. Carefirst
Pregnancy Centers, Inc., 334 F.3d 390
, 402 (4th Cir. 2003)
("When a plaintiff offers only speculation or conclusory
assertions about contacts with a forum state, a court is within
its discretion in denying jurisdictional discovery." ...