IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX
CIVIL NO. SX-20-MC-090
IN RE: TOBACCO LITIGATION Complex Litigation Division (Re: 20-CV-719 through 722)
MEMORANDUM OPINION (Filed December 29, 2023)
Andrews, Jr., Judge
INTRODUCTION
Plaintiffs, four St. Croix residents, brought separate actions 1 on September
16, 2020, against cigarette manufacturer R.J. Reynolds Tobacco Company
(Reynolds), cigarette wholesaler Island Saints Corp., and cigarette retailers United
Corp. and KAC357 Inc. They allege, as a result of smoking cigarettes
manufactured and sold by the defendants, they contracted smoking related
diseases including lung cancer, bladder cancer, laryngeal cancer, chronic
obstructive pulmonary disease, and heart disease. They further allege Reynolds,
and other cigarette manufacturers, engaged in fraud and conspiracy by
misrepresenting the health effects and addictive nature of cigarette smoking.
Plaintiffs claim they relied on the misrepresentations, continued smoking and
developed the diseases. This Court, on August 10, 2023, dismissed Plaintiffs’
1 All four cases are grouped under the above-captioned master case. In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 2
fraud and conspiracy claims for lack of personal jurisdiction. Plaintiffs now seek
permission: to conduct jurisdictional discovery to collect evidence to show
Reynolds and its co-conspirators targeted the Virgin Island with their fraud and
conspiracy; and to later replead the dismissed claims. Reynolds responds that
Plaintiffs have waived their right to seek jurisdictional discovery by strategically
choosing not to seek it earlier; and their request is an improper fishing expedition
since jurisdictional discovery would be futile. For the reasons mentioned below,
this Court concludes that Plaintiffs waived jurisdictional discovery and such
endeavor would be futile.
RELEVANT BACKGROUND
The pertinent filings that occurred prior to Plaintiffs’ request for jurisdictional
discovery are follows:
09-16-20 Complaints by Elminio Soto, Austin R. Georges, Carlos Schuster and Hayden Barry SX-2020-CV-719, 720, 721, 722
12-28-20 Order Opening Master Case and grouping Plaintiffs’ cases 2 SX-2020-MC-090, CMS No. 1
01-04-21 Motion to Dismiss for Lack of Personal Jurisdiction by Reynolds regarding all cases SX-2020-MC-090, CMS No. 7
09-01-21 Case Management Order setting final discovery deadline in all cases for 07/31/22 and setting first trial for January 2023 SX-2020-MC-090, CMS No. 65
2 A fifth case, i.e., Bruney v. Phillip Morris USA, Inc. Et. Al. (SX-2020-CV-376), was included in the grouping but was dismissed on April 21, 2023 by stipulation of the parties. In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 3
10-18-21 Case Management Order issued re-setting trial of first case for February 2023 SX-2020-MC-090, CMS No. 70
02-15-22 Case Management Order for Barry case only resetting discovery deadline for 04/30/22 and re-setting trial for September 19, 2022 SX-2020-MC-090, CMS No. 83
03-09-22 Amended Case Management Order for Barry re-setting discovery deadline for 06/10/22 and trial for November 7, 2022 SX-2020-MC-090, CMS No. 95
10-27-22 Order Granting Continuance of Barry November 7, 2022 trial SX-2020-MC-090, CMS No. 137
11-21-22 Trial Notice setting Barry trial for April 11, 2023 SX-2020-MC-722, CMS No. 134
01-12-23 Amended Case Management Order in Soto and Schuster cases re-setting discovery deadline to 02/10/23 and setting trials for July and September 2023 SX-2020-MC-090, CMS No. 155
01-12-23 Amended Case Management Order in Bruney and Georges re-setting discovery deadline to 02/28/23 and re- setting trials for October 2023 and January 2024 SX-2020-MC-090, CMS No. 156
03-14-23 Order Granting Motion to Dismiss Counts 5 and 6 in Barry SX-2020-CV-722, CMS No. 147
03-20-23 Order entered continuing Barry April 11, 2023 trial and permitting Plaintiff up to 03/27/23 to file an amended complaint SX-2020-CV-722, CMS No. 154
03-27-23 First Amended Complaint in Barry re-charging Counts 5 and 6 SX-2020-CV-722, CMS No. 156
04-17-23 Order rescheduling Barry trial to September 11, 2023, In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 4
Soto to November 13, 2023, Georges to January 22, 2024 and Schuster to March 4, 2024 SX-2020-MC-090, CMS No. 173
04-20-23 Motion to Dismiss Counts 5 and 6 of Barry Amended Complaint For Lack of Personal Jurisdiction filed by Reynolds SX-2020-CV-722, CMS No. 170
04-25-23 Amended Order issued Rescheduling Barry trial to September 5, 2023, Soto to January 22, 2024, Georges to March 4, 2024 and Schuster to April 29, 2024 SX-2020-MC-090, CMS No. 178
05-19-23 Opposition to Motion to Dismiss Counts 5 and 6 by Plaintiff SX-2020-CV-722, CMS No. 179
06-16-23 Reply to Opposition to Motion to Dismiss by Reynolds SX-2020-CV-722, CMS No. 186
08-10-23 Order Dismissing Counts 5 and 6 of Amended Complaint in Barry SX-2020-CV-722, CMS No. 202
08-18-23 Order Cancelling Barry September 5, 2023 trial SX-2020-CV-722, CMS No. 213
12-13-23 Global Case Management Order rescheduling Barry trial to June 3, 2024, Soto to August 12, 2024, Georges to October 7, 2024 and Schuster to January 1, 2025. SX-2020-MC-090, CMS No. 192
On August 17, 2023, Plaintiffs filed their Motion For Jurisdictional Discovery
and Additional Time to Replead. Reynolds filed its opposition on August 28, 2023
and Plaintiff replied on September 1, 2023. Thereafter, Reynolds filed a Motion
For Leave to File a Surresponse and a proposed surresponse on September 7,
2023. Plaintiff replied to the surresponse on September 18, 2023. No hearing was In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 5
held on the motion for jurisdictional discovery.
APPLICABLE LAW
The trial court has wide discretion to determine whether to grant
jurisdictional discovery. West Indies Corp. v. Pro-Source, Inc., Civ. No. ST-01-CV-
355, 2007 V.I. LEXIS 44 at *7, (Super. Ct. Nov. 30, 2007). It “must limit the
frequency or extent of discovery otherwise allowed” by the rules under certain
circumstances including when “the party seeking discovery has had ample
opportunity to obtain the information by discovery in the action.” V.I.R. Civ. P.
26(b)(3)(C). A party can waive jurisdictional discovery by failing to timely request
it. See Evans-Freke v. Evans-Freke, 75 V.I. 407, 469 n 47 (V.I. 2021) (stating that
if the party wished, “she could have requested jurisdictional discovery as to
Stephen’s travel. As she did not do so, she waived her right to request such
relief.”).
Virgin Islands courts have consistently held that a plaintiff’s right to
jurisdictional discovery should be sustained where “a plaintiff presents factual
allegations that suggest ‘with reasonable particularity’ the possible existence of the
requisite ‘contacts between [the party] and the forum state.’” Phillips v. Woodforest
Construction, LLC, Civ. No. ST-2020-CV-317, 2023 WL 4930127 at *19 (Super.
Ct. Jul. 31, 2023) (citing Pichierri v. Crowley, Civ. No. ST-08-CV-340, 2009 V.I.
LEXIS 92 (Super. Ct. June 29, 2009)); Atrium, V.I., LLC v. Atrium Staffing, LLC, 69
V.I. 259, 271-72 (Super. Ct. Aug. 9, 2018) citing (citing Toys “R” Us, Inc. v. Step In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 6
Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003)); Power v. Blue Serenity, LLC, Civ.
No. ST-13-CV-523, 2014 V.I. LEXIS 113 at *10 (Super. Ct. Dec. 08, 2014), citing
Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003); Pichierri v.
Crowley, Civ. No. ST-08-CV-340, 2009 V.I. LEXIS 92 at *4 (Super. Ct. Jun. 29,
2009); accord Aldossari v. Ripp, No. 21-2080, 2022 U.S. App. LEXIS 25563 at
*259 (3d Cir. 2022). Conversely, jurisdictional discovery should be denied where
the factual allegations do not suggest “with reasonable particularity” the possible
existence of the requisite contacts between the defendant and the Virgin Islands.
See Fatouros v. Lambrakis, 627 Fed. App. 84, 88 (3d Cir. 2015) (concluding district
court did not abuse its discretion by declining to allow jurisdictional discovery, as
plaintiff “did not present factual allegations that suggested with reasonable
particularity the possible existence of the requisite minimum contacts.”) (emphasis
supplied). As the Third Circuit puts it, “[a] plaintiff may not, however, undertake a
fishing expedition based only upon bare allegations, under the guise of
jurisdictional discovery.” Eurofins Pharma US Holdings v. BioAlliance Pharma SA,
623 F.3d 147, 157 (3d Cir. 2010). This analysis is clearly case specific.
ANALYSIS
Plaintiffs seek a 120-day period to pursue further discovery claiming they
“need jurisdictional evidence to show R.J. Reynolds and its co-conspirators
targeted the USVI with their fraud and conspiracy and to properly amend their In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 7
complaints to preserve jurisdiction on these counts.” Mot. for Jurisdictional Disc. 2.
The particular counts Plaintiffs reference are 5 and 6 of their complaints which
charge fraud and civil conspiracy. They wish to request documents, take witness
testimony, issue interrogatories and requests for admission, and take corporate
representative depositions “on where and how RJR directed its fraud and
conspiratorial activities.” Id. As explained below, Plaintiffs waived jurisdictional
discovery and such discovery would be futile in any event.
1) Plaintiffs Waived Their Right to Request Jurisdictional Discovery.
A review of the pleadings in these matters reveals Plaintiffs’ dilatory conduct
with respect to seeking jurisdictional discovery. Reynolds filed its motion to
dismiss as to all Plaintiffs on January 4, 2021. It specifically argued with respect
to Plaintiffs’ fraud and conspiracy claims (Counts 5 and 6) that “the Complaints
contain no allegation that Plaintiffs were injured as a result of any conduct
purposefully directed at the U.S. Virgin Islands.” Reynolds’ Mot. to Dismiss
(01/4/21), 1. In the face of this challenge, Plaintiffs nevertheless opted not to seek
jurisdictional discovery. Instead, they mention in their opposition “if the Court is
inclined to hold an evidentiary hearing, the Plaintiff must be permitted Jurisdictional
Discovery to collect jurisdictional evidence through Interrogatories, Requests for
Admission and corporate representative depositions of RJR.” Pls.’ Opp’n to
Reynolds’ Mot. to Dismiss (01/23/21), 4. They further asserted “[h]owever, the
Plaintiffs believe an evidentiary hearing is unnecessary and an unproductive use In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 8
of the court’s and parties’ time.” Id. The Court did not hold an evidentiary hearing.
Thus, as per Plaintiffs’ determination, jurisdictional discovery was a non-issue.
On March 14, 2023, this Court dismissed Counts 5 (Fraudulent
Concealment and Misrepresentation) and 6 (Civil Conspiracy) of Barry’s initial
complaint for failure to make a prima facie showing of personal jurisdiction. Order
Regarding Mot. to Dismiss (03/14/23), 14. Specifically, the court found the
complaint deficient for: 1) failure to allege how Reynolds’ cigarettes were supplied
to the territory (i.e., directly from Reynolds or through a stateside wholesaler); and
2) failure to allege a specific contact or purposeful direction of Reynolds’ activities
to the Virgin Islands. Id. at 13. The Court explained that Barry’s general allegations
were insufficient to permit for adequate assessment of the nature of the claimed
contact by Reynolds or whether Barry’s claim arises out of the alleged contact(s).
Id. at 13-14. The order clearly signaled: the need to plead specific jurisdictional
allegations regarding Reynolds’ contact with the Virgin Islands; and the Court’s
concern about its ability to assess whether Barry’s claims arise out of the alleged
contacts.
In response to the dismissal, Barry amended his complaint and added new
allegations including:
1) Reynolds directly supplied their cigarettes to Virgin Island wholesalers. Am. Compl. ¶ 14, p 5.
2) Reynolds directed specific acts nationwide toward the American Public to propagate fraud and conspiracy in the Virgin Islands. Id. ¶ 23, p 7. In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 9
3) As a result of Reynolds’ tortious acts specifically directed to the Virgin Islands, including the propagation of a nationwide conspiracy designed to spread to the Virgin Islands, Plaintiff suffered injuries. Id. ¶ 24, p 8.
4) Since 1955 to 2000, Reynolds purposefully directed a massive scheme of lies and misrepresentations nationwide to the American Public, which included the U.S. Virgin Islands. Id. ¶ 25, p 8.
5) Defendants’ nationwide conspiracy was reported in Virgin Islands newspapers, radio, and newspapers. Id. ¶¶ 29 - 33, p 9 - 12.
6) [L]awyers, acting as agents under the direction of the Tobacco Defendants acted to aid, abet, assist, develop and propagate the Tobacco Defendants’ fraud, misrepresentation, and conspiracy as far as possible, specifically directing and reaching the U.S. Virgin Islands as part of their nationwide campaign.” Id. ¶ 266, p 64.
These new allegations, although containing the words “specific”, “specifically” and
“purposefully directed” do not identify the nature of Reynolds’ conduct purportedly
directed to the Virgin Islands.
On April 20, 2023, Reynolds again moved to dismiss the fraud and
conspiracy claims (Count 5 and 6) in Barry’s amended complaint for lack of
personal jurisdiction. It argued that Barry’s fraud and conspiracy claims did not
arise out of the conduct alleged in the complaint and that the conduct was not
purposefully directed at the Virgin Islands. Opp’n to Mot. to Dismiss, 2. Again,
Barry chose not to seek jurisdictional discovery to support his complaint
allegations, nor did he request an evidentiary hearing. Instead, he chose to rely
on documentary evidence (presumably already in his possession) to support
numerous contacts he claimed were made by Reynolds including: the distribution In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 10
of cigarettes in the Virgin Islands, national broadcasting of false statements and
misrepresentations; the creation of a “controversy”; cigarette commercials directed
to the Virgin Islands; nationwide propagation of “the controversy”; advertising of
filtered cigarettes on packs and national magazines; publication of tobacco
industry committee’s pledge published in Virgin Islands newspapers; publication
of tobacco industry committee’s response to EPA draft on second-hand smoking
in the St. Croix Avis; tobacco industry statements regarding cigarette filters in the
St. Croix Avis; and television appearances by tobacco spokespersons in St. Croix.
The Court found Barry’s submitted documents insufficient to support personal
jurisdiction either because they contained no fraudulent message, was not directed
to the Virgin Islands by Reynolds and/or Barry did not rely on them. Barry knew,
or should have known, his bare complaint allegations would not suffice to
overcome a challenge to jurisdiction since the Court could only accept as true
allegations that were supported by affidavits or other competent evidence. Yet, he
chose to proceed without seeking further discovery. Molloy v. Independence Blue
Cross, 56 V.I. 155, 173 (V.I. 2012).
All Plaintiffs now seek jurisdictional discovery:
1) after two and one-half years since Reynolds challenged this Court’s jurisdiction over the same fraud and conspiracy claims;
2) after the Court found Barry’s support for his complaint allegations was insufficient;
3) after discovery deadlines have expired (the last being 02/28/23, i.e., In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 11
2020-720 for Georges); and
4) when trials for Plaintiffs were set to commence in 2023 and 2024.
They have had ample opportunity to seek jurisdictional discovery and chose not
to do so. It is inequitable for a plaintiff to strategically forego a request for
jurisdictional discovery, await the court’s decision on a motion to dismiss, and then
seek permission to conduct discovery. Under the circumstances, Plaintiffs have
waived their opportunity to conduct jurisdictional discovery by failing to timely
request it.3 Further, a grant of jurisdictional discovery will result in a 120-day
discovery period. This will be followed by a motion to amend, a motion to dismiss,
an opposition thereto, a reply, possibly a motion hearing, and a ruling by the Court.
Considering scheduling limitations, this process will very likely delay the scheduled
trials for another year. This reality mitigates against a grant of jurisdictional
discovery.
Plaintiffs make several arguments in an attempt to justify jurisdictional
discovery, all of which lack merit. They argue Adams v. N.W. Co., Inc., 63 V.I.
427, 439 (Super. Ct. 2015) supports the notion that, where a complaint is subject
to dismissal, the court must permit a curative amendment unless it would be
3 Although the Court’s dismissal order on March 14, 2023 applied to the Barry case, the other plaintiffs are represented by the same lawyers. Their complaints contain almost identical allegations. Their discovery deadlines have long passed and the identical motion to dismiss their claims has been pending since January 4, 2021. Consequently, this Court concludes that the other plaintiffs have waived their right to seek jurisdictional discovery as well. In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 12
inequitable or futile. Pls.’ Mot. for Jurisdictional Disc. 2 n 3. First, Plaintiffs’
complaints are not “subject to dismissal” they were already dismissed which makes
Plaintiffs’ discovery request a belated one. Second, as explained below, an
amendment would be inequitable and futile. Plaintiffs claim, pursuant to this
Court’s August 10, 2023 memorandum in the Barry case, “all that is lacking are
certain allegations showing that Tobacco Companies and their co-conspirators
purposefully targeted the Virgin Islands.” Id. at 3. Plaintiffs misread this Court’s
ruling. Barry’s deficiency went beyond his allegations and involved his support (i.e.
proof) thereof. He failed to:
1) support certain allegations with affidavits or other competent evidence;
2) specify details of alleged false misrepresentations;
3) specify how alleged false misrepresentations were distributed to the V.I.;
4) show certain alleged misrepresentations were directed to the V.I.; and
5) show he relied on the alleged misrepresentations.
See Memo Op. (08/10/23), pp 13 - 29. Plaintiffs claim, “these exact same claims
of fraud and conspiracy have been found to meet the threshold for personal
jurisdiction in Brown/Gerald v. R.J. Reynolds Tobacco Co.”. Pls.’ Mot. for
Jurisdictional Disc. 8. This argument is irrelevant to Plaintiffs’ motion for
jurisdictional discovery and appears more as an attack on the Court’s conclusion
that Plaintiffs’ failed to establish this Court’s jurisdiction. Furthermore, the
Brown/Gerald court did not address the key issue here, i.e., sufficiency of proof of In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 13
fraudulent activities directed to the Virgin Islands. 4
In their reply, Plaintiffs make further arguments in support of their request
for jurisdictional discovery. They claim “[p]laintiffs’ opposition on January 23, 2021,
requested jurisdictional discovery.” Pls.’ Reply to Reynolds’ Opp’n to Mot. for
Jurisdictional Disc. 1. This statement is simply false. Plaintiffs made no such
request.5 Instead they opined they must be permitted jurisdictional discovery if the
Court is inclined to hold an evidentiary hearing. Their false assertion warrants no
further discussion. Plaintiffs argue, Reynolds “waived its argument of personal
jurisdiction” as to the fraud and conspiracy counts by not pushing the Court to rule
on its motion to dismiss and by participating in the ligation. Id. at 2. Plaintiffs did
not raise this argument in their opposition to Reynolds’ motion to dismiss.
Therefore, it is waived as the Court has already ruled. Plaintiffs argue they relied
on the Court’s statement on March 17, 2023 that this was a simple pleading issue.
Id. at 3. A statement by the Court that pleadings need to be adjusted, however, is
not a license to plead unsupportable (unprovable) facts. Plaintiffs assert “if the
4 Plaintiffs further argue that the Brown/Gerald court issued binding law regarding inferred reliance that was upheld by the V.I. Supreme Court. Pls.’ Opp’n to Mot. for Jurisdictional Disc. 6; Pls.’ Sur- response to Reynold’s Sur-reply 2. In fact, the Supreme Court in the Brown/Gerald matter (76 V.I. 656) did not address the inferred reliance issue. Plaintiffs’ claim regarding binding law is thus patently incorrect. 5 Later, in their Reply, Plaintiffs switch position and argued “the Plaintiffs timely raised jurisdictional discovery. Plaintiffs raised the potential need for jurisdictional discovery back in January 2021.” Pls.’ Reply to Reynolds’ Opp’n to Mot. for Jurisdictional Disc. 7. Clearly, “requesting” discovery is quite different to “raising the potential need” for discovery. In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 14
Court need evidence, and considering R.J. Reynolds is the possessor of the
evidence, jurisdictional discovery is necessary.” Id. at 4. The need for discovery is
not for the Court, but for Plaintiffs, to decide guided by the axiom that complaint
allegations must be supported by competent evidence. Plaintiffs argue that no
delay should be a concern as to Georges, Schuster and Soto since no ruling has
been made in those cases; and they made the same request for jurisdictional
discovery in those cases in their omnibus opposition to Reynolds’ motion to
dismiss. Id. As indicated above, no such jurisdictional discovery request was
made, and delay is a concern for all Plaintiffs as trials are set to go forth within a
year.
2) Plaintiffs Have Failed to Justify Their Request for Jurisdictional Discovery.
Even if Plaintiffs had not waived jurisdictional discovery, their right thereto
would be sustained only if they present factual allegations that suggest with
reasonable particularity the possible existence of the requisite contacts between
Reynolds and the Virgin Islands, that is, contacts, upon which Plaintiffs relied,
tending to show Reynolds purposefully directed its allegedly fraudulent messages
to the Virgin Islands. See Phillips, 2023 WL 4930127 at *19. Plaintiffs have not
met this minimal burden.
In support of their request for jurisdictional discovery, Plaintiffs boldly assert
“the Plaintiffs are confident they will have sufficient documents and information to
properly replead their allegations that RJR and/or its co-conspirators purposefully In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 15
targeted the Virgin Islands with its fraudulent misrepresentations and conspiratorial
conduct.” Pls.’ Mot. for Jurisdictional Disc. 4. They do not explain why they are so
confident, nor do they specify the nature of the documents they expect to uncover.
Such assertions lack reasonable particularity to allow for a meaningful
determination of whether the requisite contacts possibly exist. Further, Plaintiffs’
failure to present prima facie evidence to support jurisdiction, over their fraud and
conspiracy claims, despite their submissions and allegations of numerous contacts
in opposition to Reynolds’ second motion to dismiss, strongly suggest the
nonexistence of the requisite contacts. Jurisdictional discovery, then, would be a
futile endeavor. Plaintiffs do not even proffer allegedly fraudulent representations
they saw, heard, or read but have no documentary support for. They do not hint
at when these fraudulent representations were made or how they were directed to
the Virgin Islands. It is apparent that Plaintiffs have no clue as to what contacts
(i.e., misrepresentations directed to the Virgin Islands) jurisdictional discovery
might uncover. Under the circumstances their request for jurisdictional discovery
manifests as a fishing expedition and is not justified. 6 See Koh v. Koo, No. 22-CV-
6 Plaintiffs argue the Court should not be concerned about a fishing expedition since “[h]undreds of juries on the exact same fraud and conspiracy evidence have returned verdicts on the fraud and conspiracy counts.” Mot. for Jurisdictional Disc. 6. The logic of this argument escapes the Court as juries decide issues of fact. They do not make determinations of whether a court has personal jurisdiction over claims. Plaintiffs also argue that various courts “have found the Tobacco Companies’ fraudulent conduct and conspiratorial activities disturbing, outrageous, and reprehensible, and have not precluded such claims on the basis of personal jurisdiction.” Id. This argument suffers from the same irrelevance and lack of specificity as Plaintiffs’ request for jurisdictional discovery. It thus does not help Plaintiffs’ request for jurisdictional discovery in the In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 16
6639 (JMF), 2023 U.S. District LEXIS 147802 at *11, n 5 (S.D.N.Y. Aug. 21, 2023)
(denying jurisdictional discovery and stating “Nor do they identify what facts they
would uncover through discovery that would support the exercise of personal
jurisdiction over the Maum Entities. Accordingly, the Court declines to grant
Plaintiffs’ belated request for jurisdictional discovery.”); Pattanayak v. Mastercard,
Inc., Civ. No. 20-12640, 2021 U.S. Dist. LEXIS 47293 at *12 (D.N.J. Mar. 12, 2021)
(denying plaintiff’s request for jurisdictional discovery and stating “Pattanayak has
provided no sense of the relevant jurisdictional facts discovery might uncover. It
amounts to little more than a bare request for an opportunity to ‘better evaluate’
Mastercard’s ‘potential contacts’ with New Jersey.”); Pfister v. Selling Source, LLC,
931 F. Supp. 2d 1109, 1118 (D. Nev. 2013) (denying jurisdictional discovery and
stating “[t]o this end, plaintiff's seeking jurisdictional discovery must provide some
basis to believe that discovery will lead to relevant evidence providing a basis for
the exercise of personal jurisdiction and courts are within their discretion to deny
requests based ‘on little more than a hunch that [discovery] might yield
jurisdictionally relevant facts.’" citing Boschetto v. Hansing, 539 F.3d 1011, 1020
(9th Cir. 2008)).
In a final desperate attempt to justify jurisdictional discovery, Plaintiffs claim,
“it seems the Court did not understand the critical importance of the Fraud and
least. In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 17
Conspiracy Counts to tobacco litigation,” and purport to educate the Court
thereon.7 Pls.’ Reply to Reynolds’ Opp’n to Mot. for Jurisdictional Disc. 12. They
claim: that cigarettes have killed more than 400,000 Americans a year for decades;
tobacco companies won every suit between the 1950s and 1990s because
tobacco plaintiffs did not have tobacco companies’ internal documents showing
their fraud and conspiracy; and since the year 2000, plaintiffs won two thirds of the
cases because they obtained access to, and used, the tobacco documents. Id. at
13. Plaintiffs thus conclude that “by not finding jurisdiction over this fraud and
conspiracy counts, and not following binding case law in Gerald . . . regarding
inferred reliance in tobacco litigation for fraud and conspiracy which affected the
Virgin Islands- this Court is creating a de facto immunity for Tobacco Companies’
wrongful actions in the Virgin Islands.” Id. at 14. Once again, Plaintiffs shift focus
towards nonissues. Let it be clear, the importance of certain claims to any party is
of no concern to this Court who stands as a neutral arbiter of the law. It is not the
Court’s role to assume jurisdiction over a fraud or conspiracy claim because it is
critically important to a tobacco litigation. Jurisdiction is determined based upon
proof of legally requisite contacts not upon a plaintiff’s need or desire to “win” a
case. Second, in the Virgin Islands, decisions from one Superior Court judge are
not binding on other Superior Court judges. In sum, Plaintiffs’ tobacco litigation
7 Counsel is hereby cautioned to constrain the level of arrogance in submissions to the Court. Such conduct borders on disrespect and will not be taken lightly in the future. In Re Tobacco Litigation SX-2020-MC-090 2023 VI Super 81U Page 18
history does nothing to assist their burden to show that jurisdictional discovery will
possibly yield evidence of the requisite contacts to the Virgin Islands by Reynolds.
CONCLUSION
For the reasons mentioned above, this Court concludes that Plaintiffs have
waived their right to request jurisdictional discovery and any such endeavor would
be futile. An order consistent herewith will be issued contemporaneously.
DATE: December 29, 2023 ALPHONSO G. ANDREWS, JR. Superior Court Judge
Attest: TAMARA CHARLES CLERK OF THE COURT
_______________________ COURT CLERK III 12-29-2023 ________________________ DATE