In re Magnetic Audiotape Antitrust Litigation, Docket No. 02-7687.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Per Curiam
• Citation: 334 F.3d 204
• Docket Number: Docket No. 02-7687.
• Decision Date: 20 June 2003
• Parties: In re: MAGNETIC AUDIOTAPE ANTITRUST LITIGATION Texas International Magnetics, Inc., f/k/a Hix Recording, on behalf of itself and all others similarly situated, and Crown Magnetics, Inc., Plaintiffs-Appellants, and Premier Multimedia, Inc., Plaintiff-Counter-Defendant-Appellant, v. Auriga-Aurex, Inc., Defendant-Counter-Claimant-Appellee, and Sunkyong Industries Co., f/k/a Sunkyong Ltd, Sunkyong America, Inc. (New York), Sunkyong America, Inc. (Los Angeles), BASF Magnetics GMBH, EMTEC Magnetics Promedia, Inc., f/k/a Jr Pro Sales, EMTEC Magnetics GMBH, Kohap Group of Korea, Kohap Inc., EMTEC Holding GMBH, Aurex S.A. De C.V. (Auriga), TDK Corporation, TDK Electronics Corporation, and SKM Ltd., formerly SK Magnetic Co. Ltd., Defendants-Appellees.

334 F.3d 204 In re: MAGNETIC AUDIOTAPE ANTITRUST LITIGATION
Texas International Magnetics, Inc., f/k/a Hix Recording, on behalf of itself and all others similarly situated, and Crown Magnetics, Inc., Plaintiffs-Appellants, and
Premier Multimedia, Inc., Plaintiff-Counter-Defendant-Appellant,
v.
Auriga-Aurex, Inc., Defendant-Counter-Claimant-Appellee, and
Sunkyong Industries Co., f/k/a Sunkyong Ltd, Sunkyong America, Inc. (New York), Sunkyong America, Inc. (Los Angeles), BASF Magnetics GMBH, EMTEC Magnetics Promedia, Inc., f/k/a Jr Pro Sales, EMTEC Magnetics GMBH, Kohap Group of Korea, Kohap Inc., EMTEC Holding GMBH, Aurex S.A. De C.V. (Auriga), TDK Corporation, TDK Electronics Corporation, and SKM Ltd., formerly SK Magnetic Co. Ltd., Defendants-Appellees. Docket No. 02-7687. United States Court of Appeals, Second Circuit. Argued/Submitted March 13, 2003. Decided: June 20, 2003.

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Howard J. Sedran, Philadelphia, PA (Levin, Fishbein, Sedran & Berman, Eric L. Olson, Karla Gluek, Heins, Mills & Olson, P.L.C., Minneapolis, MN; Richard J. Kilsheimer, Kaplan Fox & Kilsheimer, LLP, New York, NY; and Michael J. Brickman, Richardson, Patrick, Westbrook & Brickman, LLC, Charleston, SC, of counsel), for Plaintiffs-Appellants and Plaintiff-Counter-Defendant-Appellant.

Bud G. Holman, New York, N.Y. (Kelley, Drye & Warren, LLP, of counsel), for Defendant-Appellee SKM Ltd.

Before: OAKES, CABRANES and SOTOMAYOR, Circuit Judges.

PER CURIAM.

Named plaintiffs Texas International Magnetics, Inc., Crown Magnetics, Inc., and Premier Multimedia, Inc., appeal from the dismissal of defendant SKM, Ltd., from this class action antitrust suit based on lack of personal jurisdiction. Plaintiffs argue that the district court erroneously determined that it lacked personal jurisdiction over SKM and, alternately, that the court improperly denied them the opportunity

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to conduct jurisdictional discovery on questions of both specific and general personal jurisdiction prior to making its decision. Similar to our conclusion in the companion case to this matter, see Tex. Int'l Magnetics, Inc. v. BASF Aktiengesellschaft, 31 Fed.Appx. 738, 2002 WL 385569 (2d Cir.2002), we agree that the plaintiffs should have been afforded an opportunity to engage in jurisdictional discovery with regard to SKM prior to the court ordering dismissal. Furthermore, we deny SKM's motion to dismiss the appeal based on events in SKM's pending bankruptcy proceeding in Korea. Accordingly, we vacate the judgment and remand to the district court.

In their complaint, plaintiffs allege that SKM, a Korean corporation, along with a number of other manufacturers and distributors of magnetic audiotape, conspired to fix the price of such tape in the United States for a period of roughly eight years, in violation of the Sherman Act, 15 U.S.C. § 1 (2002). Specifically with regard to SKM, plaintiffs alleged that it participated directly in the conspiracy, as well as indirectly, by directing the activities of employees of its United States subsidiary, SKMA, Inc.

SKM brought a motion to dismiss under Fed.R.Civ.P. 12(b)(2), arguing that the court lacked personal jurisdiction. The court granted the motion, concluding in relevant part (1) that plaintiffs had failed either to allege facts or point to facts in the record establishing that SKM was a direct participant in the price fixing activities directed at the United States such that specific personal jurisdiction extended over it; and (2) that plaintiffs had failed either to allege facts or point to facts in the record such that the continuous and systematic contacts of SKM's subsidiary, SKMA, Inc., should be imputed to it for purposes of establishing general personal jurisdiction. In dismissing SKM, however, the court failed to rule explicitly on plaintiffs' request for further discovery on the question of personal jurisdiction.

After plaintiffs filed their notice of appeal, SKM filed a motion to dismiss in this court, which we have considered along with the merits of this appeal.

A.

We review a district court's dismissal for want of personal jurisdiction de novo. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir.2002). On a Fed.R.Civ.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of showing that the court has jurisdiction over the defendant. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction. Id.

We credit a plaintiff's averments of jurisdictional facts as true. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). Where plaintiff has engaged in jurisdictional discovery, but no evidentiary hearing was conducted, "the plaintiff's prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of facts that, if credited ... would suffice to establish jurisdiction over the defendant." Id.

We note, here, that the district court analyzed the question of personal jurisdiction under § 12 of the Clayton Act, 15 U.S.C. § 22 (2002), adopting the Ninth Circuit's interpretation of the provision found in Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406 (9th Cir.1989).¹ Neither

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party contests on appeal the propriety of this decision.

Under the Ninth Circuit's interpretation of § 12, plaintiffs may avail themselves of § 12's worldwide service-of-process provision, which enables courts...