The opinion of the court was delivered by: Weinstein, Senior District Judge.
AMENDED MEMORANDUM AND ORDER
A number of self-insured building trades health and welfare
plans have brought suit against the tobacco industry under the
Racketeer Influenced and Corrupt Organizations Act ("RICO")
seeking to recover millions of dollars expended in connection
with tobacco-related illnesses of their members. B.A.T.
Industries, p.l.c. ("BAT"), the British holding company parent of
defendant Brown & Williamson Tobacco Corporation ("B & W"), has
moved for judgment on the pleadings on the ground of lack of
personal jurisdiction. Because service on BAT was not authorized
by RICO's nationwide service provision, personal jurisdiction
must be based on either New York law or, in the event BAT is not
subject to the jurisdiction of the courts of New York or any
other state, on Rule 4(k)(2) of the Federal Rules of Civil
Procedure, the federal long arm provision.
In a similar motion in a related case, Simon v. Philip Morris,
Inc., 86 F. Supp.2d 95 (E.D.N.Y. 2000), evidence of BAT's
participation in an industry-wide conspiracy with significant
links to New York supported the exercise of personal jurisdiction
under CPLR 302(a)(2). CPLR 301 and 302(a)(3)(ii) afforded
additional jurisdictional bases. Personal jurisdiction over BAT
was held to comport with the Due Process Clause of the Fourteenth
Amendment. The same conclusion is required in the instant case.
Federal long arm jurisdiction is unavailable.
Suit was filed in February 1998 asserting RICO and various
pendent state law claims. In June 1998 BAT filed a motion to
dismiss for lack of personal jurisdiction pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure. Almost
simultaneously a similar motion filed by BAT in Falise v.
American Tobacco Co. was denied as unripe for decision because
of the need for further discovery on the personal jurisdiction
issue. See No. 97 CV 7640, 1998 WL 372401 (E.D.N.Y. July 2,
1998). A discovery scheduling order was entered. See Order
dated July 21, 1998. Guided by these two orders, in August 1996,
BAT and the National Asbestos plaintiffs stipulated that BAT
would withdraw its 12(b)(2) motion, file an answer preserving its
jurisdictional defense, and provide plaintiffs with information
in accordance with the Falise order.
In view of the extensive materials submitted and considered,
BAT's Rule 12(c) motion was converted into a summary judgment
motion. See generally 5A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1371 (2d ed. 1990). It
was denied by order of July 19, 1999. This memorandum explains
the reasons for the denial.
Substantially the same jurisdictional facts are alleged here as
in Simon. See 86 F. Supp.2d at 99-119. Essentially the same
documents are relied upon by the plaintiffs in both cases. As in
Simon, supplementation of the record with tobacco industry
documents posted on the website of the University of California
at San Francisco's Library and Center for Knowledge Management is
warranted. See http://www.library.ucsf.edu/tobacco. The
findings in Simon are adopted and made a part of this
IV. LAW AND ITS APPLICATION
A. Federal Rules of Civil Procedure
Rule 4(k) of the Federal Rules of Civil Procedure governs
amenability to suit in a federal district court. It specifies the
circumstances in which service of process confers personal
jurisdiction over a defendant, providing for service authorized
by state law (Rule 4(k)(1)(A)) or by federal law (Rules
4(k)(1)(D) and Rule 4(k)(2)). Insofar as pertinent, the Rule,
denominated "Territorial Limits of Effective Service" reads:
(1) Service of a summons or filing a waiver of
service is effective to establish jurisdiction over