UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JOHN DOE I et al., )
Plaintiffs, )
)
V. ) Civil No. 01-cv-1357-RCL
)
EXXON MOBIL CORPORATION et al, )
Defendants. )
)
)
MEMORANDUM OPINION
Pursuant to an agreement with the Indonesian government, Exxon Mobil
Corporation (EMC), a United States corporation, and several of its wholly owned
subsidiaries, including Exxon Mobil Oil Indonesia Inc. (EMOI), operated a large natural
gas extraction and processing facility in the Aceh Province of Indonesia. Plaintiffs are
Indonesian citizens who claim Exxon’s security forces engaged in extrajudicial killing;
torture; cruel, inhuman, and degrading treatment; and arbitrary detention in violation of the
Alien Tort Statute (ATS) and committed various common law torts. Now before the Court
are EMOI’s motion for the Court to reconsider its prior ruling on personal jurisdiction and
EMC and EMOI’s motion to dismiss for lack of personal jurisdiction. Def.’s Mot. for
Recons. & Mot. to Dismiss, ECF No. 633 [hereinafter ECF No. 633]. For the reasons set
forth below, the Court will deny EMOI’s motion for the Court to reconsider its prior
personal jurisdiction ruling and will deny EMC and EMOI’s motion to dismiss for lack of
personal jurisdiction.
I. Background
The Court gave a detailed discussion of the factual background in its opinion
dismissing plaintiffs’ ATS claims against Exxon also issued on this date. This section only
recites the facts and procedural history relevant to personal jurisdiction.
EMOI moved to dismiss for lack of personal jurisdiction in its initial response to
the complaint in October 2001. See Defs.’ Mot. to Dismiss, ECF No. 13. This Court denied
the motion without prejudice in 2005. Mem. Op., ECF No. 103. Following jurisdictional
discovery, EMO] again moved to dismiss for lack of personal jurisdiction in January 2008.
See Defs.’ Mot. to Dismiss, ECF No. 268. This Court denied the motion in July 2008.
Mem. Op., ECF No. 340 [hereinafter ECF No. 340]. EMC has never challenged personal
" jurisdiction.
In 2008, Judge Oberdorfer, who initially presided over this case, found plaintiffs
had established this Court had personal jurisdiction over EMOI. Id. The Court determined
specific jurisdiction existed based on D.C.’s long-arm statute. D.C.’s long-arm statute
states a D.C. court “may exercise personal jurisdiction over a person, who acts directly or
by an agent, as to a claim of relief arising from the person’s-- (1) transacting any business
in the District of Columbia” or other specified contacts with D.C. D.C. Code § 13-423(a)
(2012). Based on the D.C. Court of Appeal’s interpretation of D.C.’s long-arm statute, the
Court found the statute conferred jurisdiction if the suit sufficiently related to the
defendant’s contacts with D.C. ECF No. 340.
The Court concluded the suit related to EMOI’s contacts with D.C. EMOI had
significant contact with Robert Haines, Exxon’s Manager of International Government
Affairs, in D.C. focused on EMOI’s security policies and practices in Indonesia, which
relate to plaintiffs’ claims. /d. Further, a number of EMOI personnel attended Exxon’s
“Worldwide Security Conference” in D.C. /d. This conference included a management
meeting on the “Asia/Pacific” region and provided training on security related issues,
including on standards and training for security guards and using host government security.
Id. The Court believed EMOI employed certain elements of the training provided at the
security conference. Jd. This led the Court to conclude it had personal jurisdiction over
EMOI. Id.
In July 2018, EMC and EMOI brought the present motions to reconsider the Court’s
prior ruling and to dismiss for lack of personal jurisdiction based on the Supreme Court’s
2017 decision in Bristol-Myers Squibb. EMC and EMO] argue Bristol-Myers Squibb
“significantly tightened and clarified the limits imposed by the Due Process Clause on a
state’s assertion of personal jurisdiction over out-of-state defendants.” ECF No. 633. Thus,
EMC and EMOI allege this Court has no basis under D.C.’s long-arm statute to assert
specific jurisdiction.
II. Discussion
A. Personal Jurisdiction
Federal Rule of Civil Procedure 12(b)(2) directs a court to dismiss an action when
the court lacks personal jurisdiction over the defendant. Fed. R. Civ. P. 12(b)(2). The
Supreme Court has recognized two types of personal jurisdiction: general (sometimes
called “all-purpose”) jurisdiction and “specific” (sometimes called “case-linked”)
jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
“For an individual, the paradigm forum for the exercise of general jurisdiction is the
individual’s domicile; for a corporation, it is an equivalent place, one in which the
corporation is fairly regarded as at home.” /d. at 924. A court with general jurisdiction over
a defendant “may hear any claim against that defendant, even if all the incidents occurred
in a different State.” Jd. at 919. On the other hand, specific jurisdiction requires the suit to
“aris[e] out of or relate[] to the defendant’s contacts with the forum.” Daimler AG v.
Bauman, 571-U.S. 117, 126 (2014) (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 n.8 (1984)). Therefore, “specific jurisdiction is confined to
adjudication of ‘issues deriving from, or connected with, the very controversy that
establishes jurisdiction.”” Goodyear, 564 U.S. at 919.
A personal jurisdiction defense is waived if it is not asserted. Neirbo Co. v.
Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939); Ins. Corp. of Ir. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 703 (1982) (“Because the requirement of personal
jurisdiction represents first of all an individual right, it can, like other such rights, be
waived.”). Once waived, this defense cannot be reclaimed by a defendant or restored by
the court. E.g., O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1399 (7th Cir.
1993) (once the defendant has waived objections and submitted to the jurisdiction of the
court, “the court is powerless to dismiss the suit for lack of personal jurisdiction”); Kabbani
v. Int'l Total Servs., Civ. No. 91-0391, 1991 WL 251863, at *1 (D.D.C. Nov. 12, 1991).
An exception to this waiver rule is where the defense was unavailable, as EMC argues here.
See Fed. R. Civ. P. 12(g).
B. Bristol-Myers Squibb
EMC and EMOI contend the Supreme Court’s 2017 decision in Bristol-Myers
Squibb requires dismissal of this action. In Bristol-Myers Squibb, hundreds of non-
California residents joined with California residents to sue Bristol-Myers Squibb Co.
(BMS), a global pharmaceutical company incorporated in Delaware and headquartered in
New York, and another defendant in California state court for injuries allegedly associated
with the BMS prescription drug Plavix. Bristol-Myers Squibb Co. v. Superior Court of
California, San Francisco Cty., 1378.Ct. 1773, 1777 (2017). Each plaintiff alleged serious
side effects from their Plavix use, alleged BMS misrepresented the drug’s safety and
efficacy, and asserted numerous California product liability causes of action against BMS.
Id. at 1778.
Although BMS had extensive contacts with California—it had multiple offices and
250 sales representatives in the state—the nonresidents’ claims only related to California
in that the marketing and promotion of Plavix was conducted on a nationwide basis. Id. at
1778-83. In other words, the same advertising and distribution arrangements that reached
the out-of-state plaintiffs also reached the in-state plaintiffs. Jd. The California Supreme
Court held that because BMS had such substantial contacts with California, it was
appropriate for the California courts to exercise specific jurisdiction over the nonresidents’
claims against BMS even though the relation between the claims of the nonresidents and
the activities of BMS in California was elusive. Jd. at 1778-79. The U.S. Supreme Court
reversed. Jd. at 1784.
The Supreme Court reiterated its precedent made clear that “[i]n order for a court
to exercise specific jurisdiction over a claim, there must be an ‘affiliation between the
forum and the underlying controversy, principally, [an] activity or an occurrence that takes
place in the forum State.’’’ Jd. at 1780 (quoting Goodyear, 564 U.S. at 919). Specific
jurisdiction does not exist if there is not a connection between the forum and the activity
giving rise to the suit, regardless of the extent of a defendant’s unconnected activities in
the forum state. Jd. (citing Goodyear, 564 U.S. at 919). The Court thus found the California
Supreme Court’s “sliding scale approach” to be difficult to square with precedents, as it
“resemble[d] a loose and spurious form of general jurisdiction.” Jd at 1781. “The
nonresidents were not prescribed Plavix in California, did not purchase Plavix in
California, did not ingest Plavix in California, and were not injured by Plavix in California.
The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in
California—and allegedly sustained the same injuries as did the nonresidents—does not
allow the State to assert specific jurisdiction over the nonresidents’ claims.” Id.
C. The Court will not reconsider its prior personal jurisdiction ruling as to
EMOI and EMC has waived any personal jurisdiction defense, as Bristol-
Myers Squibb was not an intervening change in controlling law
‘lL. The Court will not reconsider its personal jurisdiction decision
regarding EMOI
EMOI moved for reconsideration of this Court’s prior personal jurisdiction opinion
under Federal Rule of Civil Procedure 54(b). Under Rule 54(b), a Court may reconsider
past non-final, or interlocutory, orders. The rule provides that an interlocutory order “may
be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). The judicial interest in finality
disfavors reconsideration, but a Court may do so “as justice requires.” Wannall y.
Honeywell Int'l, Inc., 292 F.R.D. 26, 30 (D.D.C. 2013); Cobell v. Norton, 224 F.R.D. 266,
272 (D.D.C. 2004). Although this standard is flexible and allows a district court to exercise
broad discretion, there must be some good reason to reconsider an issue already litigated
by the parties and decided by the court, such as new information, a misunderstanding, or a
clear error. See Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005); All. of Artists
& Recording Cos. v. Gen. Motors Co., 306 F. Supp. 3d 413, 415-16 (D.D.C. 2016).
Reconsideration is appropriate when the movant demonstrates there is an intervening
change in law, which is what EMOI alleges here. Ali v. Carnegie Inst. of Washington, 309
F.R.D. 77, 80 (D.D.C. 2015). However, Bristol-Myers Squibb was not an intervening
change in controlling law. The Court will therefore not reconsider its prior personal
jurisdiction ruling.
The Supreme Court in Bristol-Myers Squibb made clear “[o]ur settled principles
regarding specific jurisdiction control this case” and stated the holding resulted from the
“straightforward application . . . of settled principles of personal jurisdiction.” Bristol-
Myers Squibb Co., 137 S.Ct. at 1781, 1783. Bristol-Myers Squibb did not create a new
personal jurisdiction defense. Further, this Court’s prior opinion did not employ a “sliding
scale approach” to personal jurisdiction and did not rest its decision on the theory the
nonresident plaintiffs had the same or similar alleged injuries to resident plaintiffs, as the
California court did in Bristol-Myers Squibb. This Court’s previous opinion determined
EMOI’s contacts with D.C. were related to plaintiffs claims and concerned the security
policies and practices in Indonesia at issue in this case. Accordingly, Bristol-Myers Squibb
did not alter the proper framework for analyzing personal jurisdiction in cases like this one.
EMOI also points to cases in this district that have concluded the “discernable
relationship” test is not the appropriate test for examining whether the connection between
a defendant’s in-forum contacts and plaintiffs’ claims satisfies the due process limits on
specific jurisdiction. See ECF No. 633. But these cases do not base their holdings on
Bristol-Myers Squibb. \n fact, one of the cases relied on by EMOI, Triple Up Ltd. v. Youku
Tudou Inc., 235 F. Supp. 3d 15 (D.D.C. 2017), was decided before the Supreme Court
issued its opinion in Bristol-Myers Squibb, and another, Cockrum v. Donald J. Trump for
President, Inc., 319 F. Supp. 3d 158 (D.D.C. 2018), readily acknowledged “[nJeither the
Supreme Court nor the D.C. Circuit has decided the contours—for purposes of satisfying
the due process limits on specific jurisdiction—of the causal connection between a
defendant’s in-forum contacts and plaintiffs’ claims.” Jd. at 176. Thus, the opinions of the
other courts in this district have made clear Bristol-Myers Squibb did not compel them to
reject the “discernable relationship” test. And these opinions demonstrate there is no
authority that mandates this Court reject the “discernable relationship” test—the opinions
that have come to this conclusion are only persuasive authority. EMOI has therefore failed
to demonstrate there has been an intervening change in law that justifies this Court
reconsidering its prior opinion “in light of the need for finality in judicial decision-
making.” In re Vitams Antitrust Litig., No. Misc. 99-19, 2000 WL 34230081, at *1 (D.D:C.
July 28, 2000).
2. EMC has waived any personal jurisdiction defense
EMC is not permitted to raise its personal jurisdiction defense for the first time
more than 17 years after this case first began. EMC filed Answers in 2006 and 2015 without
raising a personal jurisdiction deferise. Defs.’ Answer & Defenses to the First Am. Compl.,
ECF No. 153; Defs.’ Answer & Defenses to the Second Am. Compl., ECF No. 530. EMC
not only moved for summary judgment without raising a personal jurisdiction but also filed
an appeal and a cross appeal without raising personal jurisdiction. See generally ECF Nos.
413, 415. Thus, EMC waived any objection it may have had to personal jurisdiction. E.g.,
Ins. Corp. of Ir., 456 U.S. at 704 (defense of lack of personal jurisdiction is waived if not
timely raised in answer or responsive pleading); Chatman-Bey v. Thornburgh, 864 F.2d
804, 813 (D.C. Cir. 1988). For the reasons explained in part II(C)(1), Bristol-Myers Squibb
was not an intervening change in controlling law that made any personal jurisdiction
defense newly available to EMC. Accordingly, the Court will reject EMC’s attempt to
revive its waived personal jurisdiction defense.
III. Conclusion
The Supreme Court applied settled principles of personal jurisdiction in deciding
Bristol-Myers Squibb. Bristol-Myers Squibb did not alter the proper framework for
analyzing personal jurisdiction in cases like the one at hand. Therefore, the Court will not
reconsider its prior personal jurisdiction ruling as to EMOI, as Bristol-Myers Squibb was
not an intervening change in controlling law. Also, the Court will reject EMC’s attempt to
revive its waived personal jurisdiction defense. Accordingly, the Court will DENY
EMOI’s motion for reconsideration of the Court’s prior personal jurisdiction ruling and
DENY EMC and EMOI’s motion to dismiss for lack of personal jurisdiction. A separate
order will follow.
SIGNED this #7 “day of June, 2019.
rom 0. finttte
Royce C. Lamberth
United States District Judge