# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2019 Decided March 10, 2020

No. 18

- 7162

M ICHAEL M OLOCK , ET AL ., A PPELLEES

v.

W HOLE F OODS M ARKET G ROUP , I NC .,

A PPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:16

- cv

- 02483)

Gregory J. Casas argued the cause and filed the briefs for appellant.

Steven P. Lehotsky

, Nicole A. Saharsky , and Andrew J. Pincus were on the brief for amici curiae t he Chamber of Commerce of the United States of America, et al. in support of appellant.

Richard A. Samp was on the brief for amicus curiae Washington Legal Foundation in support of appellant.

Scott L. Nelson and Al lison M. Zieve were on the brief for amicus curiae Public Citizen, Inc. in support of plaintiffs

-2
appellees and affirmance.

Matthew W.H. Wessler argued the cause for appellees. With him on the briefs were Jonathan E. Taylor and Salvatore J. Zambri

.

Before: T ATEL and G ARLAND , Circuit Judge s , and S ILBERMAN , Senior Circuit Judge

. Opinion for the Court filed by Circuit Judge T ATEL

.

D issenting opinion filed by Senior Circuit Judge S ILBERMAN

.

T ATEL , Circuit Judge : In this not yet certified class action, the defendant moved to dismiss all nonresident putative class members for lack of personal jurisdiction

. The district court denied the motion on the merits

. We affirm, but on alternative grounds. Absent class certification, putative class members are not parties before a court
, rendering the defendant’s motion premature

.

I.

Whole Foods

, a Delaware corporation headquartered in Texa s , allegedly manipulated its incentive

- based bonus
program , resulting in emp loyees losing wages otherwise owed to them. Current and former Whole Foods employees (the Employees) initiated this diversity action in the District Court for the District of Columbia to recover the purportedly lost
wages

. The Employees brought various state law claims and sought to represent a putative class of “past and present employees of Whole Foods .” Second Am

. Class Action Compl. 25.3
Whole Foods moved to dismiss on several grounds , only one of which is relevant here: it argued that the di strict court lacked personal jurisdiction to entertain the claims of the nonresident putative class members. The district court denied the motion and certified its order for interlocutory appeal
p ursuant to 28 U.S.C. § 1 292(b)

. Whole Foods then filed a petition for leave to appeal, which this court granted.

We review the district court’s denial of Whole Foods’ motion to dismiss de novo. See Liff v. Office of Inspector Gen eral for U.S. Dep artmen t of Labor , 881 F.3d 912, 918 (D.C. Cir. 2018) (“We review de novo the District Court’s legal conclusions denying a motion to dismiss.”).

II.

Here and in the district court, the parties debate an issue left unresolved by the Supreme Court’s recent decision i n Bristol

- Myers Squibb Co. v. Superior Court of California , 137 S. Ct. 1773 (2017)

. There

, a group of six hundred plaintiffs brought a mass tort action in California state court against the pharmaceutical firm Bristol

- Myer s Squib b

. Id . at 1778. All plaintiffs asserted California state law claims, but only eighty

six were California residents; the rest resided elsewhere. Id

. The firm moved to quash service of summons on the nonresidents’ claims

, arguing that the California court lacked specific jurisdiction to hear those claims

. Id

. The Supreme Court agreed, explaining that “ [ i ] n order for a state court to exercise specific jurisdiction

, the suit must arise out of or relate to the defendant’s contacts with the forum,” meaning “there must be an affiliation between the forum and the underly ing controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Id . at 1780 (internal citations , alterations, emphasis, and quotation marks omitted). Applying that4
standard, the Court found that the nonresidents’ claims lacked an “adequate link” with California to justify the exercise of specific jurisdiction. Id

. at 1781.

Significantly for our purpose, the Court car e ful ly limited its holding: “since ou r decision concerns the due process limits on the exercise of specific jurisdiction by a State, we leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.” Id. at 178 3

– 8 4 (citing O mni Capital Int ernationa l

, Ltd. v. Rudolf Wolff & Co. , 484 U.S. 97, 102 n.5 (1987)). Justice Sotomayor

, dissenting

, further explained that “the Court today d oes not confront whether its opinion here would also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of whom were injured there.” Bristol

- Myers , 137 S. Ct. at 1789 n.4 (Sotomayor, J., dissenting). These are the issues the parties address in their briefs.

Whol e Foods argues that because the district court is sitting in diversity, its personal jurisdiction is conterminous with that of a District of Columbia court

. S ee Helmer v. Doletskaya

, 393 F.3d 201 , 205 (D.C. Cir. 2004) (“In a diversity case, the federal district court’s personal jurisdiction over the defendant is coextensive with that of a District of Columbia court.”)

. So , Whole Foods contends

, the district court should have dismissed the nonresident putative class members because a District of C olumbia court would lack both general and specific personal jurisdiction over the ir claims

. It would lack g eneral jurisdiction because Whole Foods

, a Delaware corporation headquartered in Texas, is not “ at home” in the District of Columbia

. Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 9 2 9 (2011) . And it would lack specific jurisdiction because the claims of the nonresident putative class members do not “arise out of or relate to” W hole5

Foods’ contacts with the District

, Bristol

- Myers , 137 S. Ct. at 1780 (internal quotation marks and alterations omitted); rather, they stem from Whole Foods’ conduct at out

- of

- District stores

. The Employees take a different view. A cknowledg ing that

a federal court sitting in diversity typically exercise s personal jurisdiction conterminously with that of the state in which it sit s , they argue that class actions present an exception to this general rule. According to them

, Federal Rule of Civil Procedure 23 permits a federal court sitting in diversity to exercise personal jurisdiction over unnamed, nonresident class members’ claims, even if a state court could not

.
In the alternative , the Employees argue that the district court should have denied Whole Foods ’ motion to dismiss , not on the merits, but on the ground that it was premature because prior to class certification putative class members are not parties to the action

. On this point, we agree

. See United States v. Lawson , 410 F.3d 735, 740 n.4 (D.C. Cir. 2005) (“[W]e may affirm on ground s other than those presented and relied on below.”); United States v. Garrett , 720 F.2d 705, 710 (D.C. Cir. 1983) (“It is well settled that in reviewing the decision of a lower court, that decision must be affirmed if the result is correct although the lower court relied upon a wrong ground or gave a wrong reason.” (internal quotat ion marks and alterations omitted) )

.

In Smith v. Bayer Corp. , 564 U.S. 299 (2011), the Supreme Court explained that “[i]n general, a party to litigation is one by or against whom a lawsuit is brought or one who becomes a party by intervention, substitutio n, or third

- party practice .” Id

. at 313 ( internal quotation marks, citations, and alterations omitted ). “ [T] he label ‘ party
, ’ ” the Court observed in Devlin v. Scardelletti

, 536 U.S. 1 (2002), “ does not indicate an absolute characteristic , but rather a conclusion about the applicability of6
various procedural rules that may differ based on context

. ” Id

. at 10

. For example, i n certified class actions, “[n]onnamed class members . . . may be parties for some purposes and not for others.” Id

. at 9

– 10. I n Devlin , the Court held that unnamed class member s are “considere d

. . . ‘part [ies] ’ for the purpose s of appealing the approval of [ a ] settlement

. ” Id . at 7. U nnamed class members are also parties for purposes of claim preclusion : “a judgment in a properly entertained class action is binding on class members in any subsequent litigation.” Cooper v. Fed eral Reserve Bank of Richmond , 467 U.S. 867, 874 (1984). But unnamed class members are treated as nonparties for other purposes, inc luding jurisdictional ones . I n diversity suits

, for example, unnamed class members are

non parties for the complete diversity requirement of 28 U.S.C. § 1332

. See Devlin

, 536 U.S. at 10 (“The rule that nonnamed class members cannot defeat complete diversity is . . . justified by the goals of class action litigation. ”). Lower courts also generally agree that unnamed class members are no t parties for purposes of consenting to the jurisdict ion of a magistrate judge under 28 U.S.C. § 636(c). See Koby v. ARS Nat iona l Services

, Inc. , 846 F.3d 1071, 1076 (9th Cir. 2017) (collecting cases )

. By contrast, p utative class members

— at issue in this

case

— are always treated as non parties. The Supreme Court made this clear in Smit h

. There, a federal district court enjoined a state court from hearing a class certification motion because the federal court “ had earlier denied a motion to certify a class in a related case, brought by a different plaintiff against the same defendant alleging similar claims.” Smith

, 564 U.S. at 302

. T he injunction was proper

, the district court reasoned

, because Smith

— the party seeking class certification in state
court

— w as an unnamed member of the putativ e federal class action and thus barred by claim preclusion from seeking class7

certification in the similar state action. Id

. at 313. The Supreme Court disagreed , holding that “ t he mere proposal of a class

. . . could not bind persons who were not parties .” Id. at 318. “ [N] o

one ,” the C ourt declared

, “ ‘advance[s] the novel and surely erroneous argument that a nonnamed class member is a party to the class

- action litigation before the class is certified .’” Id

. at 313 (quoting Devlin , 536 U.S. at 16 n. 1 (Scalia, J., dissenting)). The Court held that, absent class certification, Smith was not a party to the federal action and so could not be bound by the federal district court’s decision. Id . at 314

– 15 ; see also Standard Fire Ins urance Co. v. Knowles

, 568 U.S. 588, 593 (2013) (“A p laintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified.”).

Whole Foods argues that in American Pipe & Construction Co. v. Utah , 414 U.S. 538 (1974) , the Supre me Court held that putative class members are parties (at least) for the purpose of tolling statutes of limitation s

. Id . at 551. I n Smith

, however, the Court expressly repudiated this interpretation of American Pipe and its progeny, explaining that those decisions were “grounded in policies of judicial administration” and “demonstrate only that a person not a party to a class suit may receive certain benefits (such as the tolling of a limitations period) related to t hat proceeding.” 564 U.S. at 313 n.10. E ven for the purpose of tolling limitation s periods, then, putative class members are not parties

.

P utative class members become parties to an action

— and thus subject to dismissal

— only after class certification

. See In re Bayshore Ford Trucks Sales, Inc. , 471 F.3d 1233, 1245 (11th Cir. 2006) (“ The granting of class certification under Rule 23 authorizes a district court to exercise personal jurisdiction over unnamed class members who otherwise might be immune to the court ’ s power.”)

. It is class certification that8
brings unnamed class members in to the action and triggers due process limitation s on a court’s exercise of personal jurisdiction over their claims

. S ee Gibson v. Chrysler Corp.

, 261 F.3d 927, 9 40 (9th Cir. 2001) ( “ [ A ] class action, when filed, includes only the claims of the named plaintiff or plaintiffs. The claims of unnamed class members are added to the action later, when the action is certified as a class under Rule 23 .”). Any decision purporting to dismiss putati ve class members before that point would be purely advisory. Cf. Preiser v. Newkirk , 422 U.S. 395, 401 (1975) (“[Courts’] judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” (internal quotation marks omitted) )

.

To be clear

, this rule is not peculiar to class actions; rather, it is merely a specific application of the more g eneral principle that p ersonal jurisdiction entails a court’s “power over the parties before it.” Lightfoot v. Cendant Mortg age Corp. , 137 S. Ct. 553, 562 (2017)

. N onpart ies are , by definition, not “part ies before [ a court]

. ” Id .; s ee In re Checking Account Overdraft Litig ation , 780 F.3d 1031, 1037 (11th Cir. 2015) (“[T]he unnamed putative class members are not yet before the court.”). M otion s to dismiss nonpart ies for lack of personal jurisdiction are thus premature

— not to mention “ novel and surely erroneous

. ” Smith , 564 U.S. at 313 (internal citations and quotation marks omitted)

.

Because the class in this case has yet to be certified

, Whole Foods’ motion to dismiss the putative class members is premature

. Only after the putative class members are added to the action

— that is, “ when the action is certified as a class under Rule 23

, ” Gibson

, 261 F.3d at 9 40

— should the district court entertain Whole Foods ’s motion to dismiss the nonnamed9

class members.

Whole Foods insists that the Employees forfeited this argument by failing to raise it in the district court

. True, the Employees did not argue, as they do here

, that the district court should have den ied Whole Foods’ motion to dismiss because putative class members are nonparties ; instead, they focused primarily on the scope of district court authority over nonresident class members post

- certification

. And it is also true that “issues and legal theories not asserted in the district court ordinarily will not be heard on appeal.” Prime Time Int ernationa l Co. v. Vilsack , 599 F.3d 678, 686 (D.C. Cir. 2010) (internal quotation marks omitted)

. We may, however, “ consider an issue antecedent to and ultimately dispositive of the dispute before ” us, even one “ the parties fail to identify and brief

. ” U .S. National Bank of Oregon v. Independent Insurance Agents of America, Inc. , 508 U.S. 439, 447 (1993) (internal quotation marks and alterations omitted). Such an exception to the forfeiture rule squarely applies here because the party status of putative class members both precedes the question of personal jurisdiction and disposes of this appeal. And the e xception is particularly fitting where, as here, the issue is a “straightforward legal question,” which “both parties have fully addressed.” Prime Time , 599 F.3d at 686.

Whole Foods ’ remaining arguments are without merit.

First, Whole Foods asserts that even if putative class members are “nominally ‘ absent ’ before certification, their claims . . . are not

. ” Appellant’s Reply Br. 4. Accordingly, Whole Foods says , it “cannot be subject to specific jurisdiction related to the unnamed putative class mem bers ’ claims, regardless of the ‘party’ status of absent class members.” Id

. Whole Foods provides scant support for this assertion, citing10
only stray Supreme Court language to the effect that a class complaint raises the specter of “ classwide liability, ” U nited Airlines, Inc. v. McDonald , 432 U.S. 385, 395 (1977), and requires defendants “ to preserve evidence and witnesses respecting the claims of all the members of the class ,” Crown, Cork & Seal Co. v. Parker , 462 U.S. 345, 353 (1983). These decisions stan d for the unremarkable proposition that class allegations put a defendant on notice as to the scope of its potential liability and evidentiary obligations. But prior to class certification, the potential class and its potential members and their potential claims are just that: potentials . Personal jurisdiction need not be established over these hypothetical parties and claims because they are not “before [the court].” Lightfoot , 137 S. Ct. at 562. More to the point, Smith forecloses Whole Foods’ argument: p utative class members and their claims are joined to the action only after the class is certified. 564 U.S. at 318

.
Next, Whole Foods argues that personal jurisdiction issues must be “addressed as soon as possible,” even prior to class certification. Appellant’s Reply Br. 19

– 20

. But the Supreme Court has suggested just the opposite

. I n Amchem Products, Inc. v. Windsor

, 5 21 U.S. 591 (1997), the Court declined to address whether certain putative class members’ claims “me[ t ] the then

- current amount

- in

- controversy requirement . . . specified for federal

- court jurisdiction based upon diversity of citizenship” because the jurisdiction al defect “would not ex ist but for . . . class

- action certification.” Id . at 612 (internal quotation marks and alterations omitted) . The Court explained that where certification issues are “logically antecedent to the existence of any Article III issues, it is appropriate to rea ch them”

— that is, the certification issues

— “first.” Id . at 612; see also Ortiz v. Fibreboard Corp. , 527 U.S. 815, 830

– 31 (1999) ( taking a similar approach ). Th e same logic applies here : whether the putative nonresident class members are parties to11

the acti on is “logically antecedent” to whether the court has authority to exercise personal jurisdiction over them.

Finally

, Whole Foods complains about the burdens of class discovery

. But concerns about discovery costs must yield to Supreme Court precedent, which makes clear that putative class members are nonparties prior to class certification. Smith

, 56 4 U.S. at 313. Moreover

, “district courts have broad discretion in structuring discovery” to limit unnecessary or overly burden some requests, including by bifurcating class and merits discovery. Hussain v. Nicholson , 435 F.3d 359, 363 (D.C. Cir. 2006) (internal quotation marks omitted)

. The dissent’s concern that plaintiffs could receive extensive class discovery even if a hypothe tical Supreme Court decision resolv ed the Bristol

- Myers issue in defendants’ favor is therefore misplaced. See Dissenting Op. at 7

– 8 . We review discovery rulings for abuse of discretion

, Hussain , 435 F.3d at 363 , and a district court would necessarily abuse its discretion by permitting nationwide discovery on claims that Supreme Court precedent squarely foreclose d

.

O ur dissenting colleague further contends that th e whole discussion of putative class members’ party status is beside the point because “Whole Foods did not move to dismiss nonresident putative class members; it moved to dismiss the named plaintiffs’ claim to represent those putative class members.” Dissent ing Op. at 6 . We respectfully disagree.

Before the district court , Whole Fo ods asserted that the Employees alleged “no facts to support personal jurisdiction

over . . . non

- resident putative

- class member s ” and called on the district court to “ limit the adjudication of the remaining Plaintiffs’ claims as described above.” Mem

. of Points and Authorities in Support of Defs

. ’ Mot. to Dismiss Pls

. ’ Second Am

. Compl. 1 3 . Although unconventionally framed , Whole12

Foods ’ papers are best read as moving to dismiss the nonresident putative class members’ claims for lack of personal jurisdic tion, not as challenging the Employees’ right to represent those claims consistent with Federal Rule of Civil Procedure 23; indeed, Whole Foods’ motion to dismiss never even cites Rule 23. Such a reading is bolstered by the fact that elsewhere in its motio n Whole Foods moved to dismiss “ the claims of purported absent class members ” on other grounds, i.e.

, lack of standing

. Defs.’ Mot. to Dismiss Pls.’ Second Am. Compl. 2. But any ambiguity over Whole Foods’ position before the district court is resolved by the fact that, before this
court , Whole Foods expressly states that it “moved to dismiss claims asserted on behalf of nonresident putative

- class members because there were no facts to support personal jurisdiction as to those nonresidents’ claims.” Appella nt’s Br. 7. Maintaining that position on appeal, Whole Foods insists that “[t]he claims of all unnamed putative class members whose claims are unrelated to Whole Foods’ operations in the District of Columbia should be dismissed.” Appellant’s Br. 38

. We take Whole Foods at its word that it sought, and continues to seek, dis missal of the nonresident putative class members ’ claims for lack of personal jurisdiction.

III.

For the reasons given above, w e affirm the district court’s denial of Whole Foods’ motion to dismiss the nonresident putative class members and remand to the dist rict court for further proce e dings consistent with this opinion.

So ordered.S I L B E R M A N , Senior Circuit J

u d g e , dissenting: The majority disposes of this appea l by concluding that Whole Foods’ motion
to dismiss was prema ture, notwithstanding the plaintiffs’
repe ated failure to raise the issue to the distri ct co u rt

. I would
not excuse that fo rfe iture. But even if we did, the majority ’s conclusion rests on the flawe d premise that Whole Foods soug ht to dismi ss the nonresident putative c lass “member s” and “ their claims” for

lack of persona l jurisdiction. W hole Foods did not
actua lly do that. Whole Foods moved to dismiss the claims in the named plaint iff

s’ complaint
, contending that Bristol-Myers require d that those claims “should be limit ed to alleg ed injuries

o ccurring within the District of Columbi a, pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 2).” R. Doc. 30, at 1. That is a run-of -the-mill attack on class cer tification at the pleading stag e,

an d such a motion was not prema ture. Be cause I would reach the Bristol-Myers question and hold tha t c lass claims unrela ted to Whole Foods’ contac ts w ith the District of Columbi a cannot proce ed, I respe ctfully

dissent.

I.

A.

As noted, the majority decide s an issue—whether Whole Foods’ m o tion to dismiss for lack of persona l jurisdiction was prema ture—notwithstanding that the issue was forf eited by the plaintiffs by never raising it below. Recog nizi n g this is a violation of our n o rm al proce dure, the majority invokes the Supreme Court’s decision in U.S. National Bank of Oregon v. Indepe ndent Insurance Agents of America, Inc.
, 508 U.S. 439 (1993). As I have written befor e, that opinion, justify ing a fede ral court’s di scre tion to rea ch ou t an d decide a forfeited or waiv ed i s s ue, is a serious attack on fundame ntal notions of fede ral judicial restra int. See United States v. Moore
, 110 F.3d 99, 101–02 (D.C. Cir. 1997) (Silberman, J
., dissenting from the denial of rehe aring en banc)

. After all, the very notion of deciding a case or controve rsy nece ssarily implies resolving the2

contentions of the parties befor e the court—not g ratify ing the musings o f judge s acting like law profe ssors or worse y et, activi s t policy

maker s. Caref

ul observe rs of Supreme Court opin i o n s will rec og nize Indepe ndent Insurance Agents as an indication that the Court, unfor t u n ately
, sees itself not as a tribunal limit ed to actua l cases , but rathe r one that, all too often,
reg ards i t s role as a body that decide s leg al issues —somewhat like the Supreme J udicial Court of Massac husetts, which is authorized to deliver a dvisory opinions. 1

Since the Supreme Court did not set forth any standard that would g overn this discretionar y authority

—it would’ve been analy tically impo s s i b l e—it is available for any fede ral court to exercise when it wishes a cer tain result

. T h at , of course , undermines perha

ps the most important g overning conc ep t of judicial decisionmaking
, i.e., that the proce ss be fair. Allowing

a court to reach a g round not prese rved by the parties is drea dfully unfair to the party ag ainst whom that discretion is brandished. Th at is why I will never rely on Indepe ndent Insurance Agents in any

of my opinions.

B.

Since my colleag

ues rely on Indepe ndent Insurance Agents
to rea ch the issue of prema turity
, I fee l oblige d to d em o n s trate why
, even if the issue had been proper ly ra i s ed, the plaintiffs’
arg ument should be reje cted. The majority opinion is based on the premise that Whole Foods’ Rule 12(b)( 2) motion to dismiss for lack of persona l jurisdiction neces s ar ily was aimed at dismiss ing the putative class “m em b ers” and “their claims” as parties

. Op. at 2, 4, 7, 8, 10, 12. Putative class members are not

I hav e of te n tho ught that the Suprem e Cour t w oul d hav e gr ea

te r 1 im pac t on the lo w er co urts if it s fo cus w as on the way it dec ides ca se s

ra ther than what

it de ci des

.3

“par ties” to the action fo r an y purpose, so the rea soning g oes, thus befor e class cer

tification there are no parties (other than those named) for a district court to dismiss

. I t h i n k the key premise is fa lse. 2

W h o le Foods moved to dismiss the “cla ims” in t h e plaintiffs’ “cla ss action complaint,” and c o n te n d e d th at whateve r claims rema ined “should be limit ed to alleg ed injuries occur ring within the District of Columbi a, pursuant to Fe dera l R ule of Civil Procedur e 12(b)( 2).” R. Doc. 30, at 1. The motion did not ask for dismiss al of any person, let alon e t h e putative class members. No r did the motion specify that the “cla ims” it challeng ed for lack o f persona l jurisdiction wer e those of the putative class members as opposed to those of the named
p l aintiffs. I nstead, on the first occa sion Whole Foods had t o

3 respond to the plaintiffs’ new arg ument—in its reply brief in this court—Whole Foods descr ibes itself as “cha lleng [i ng ]” “cla ss

The m ajor it

y al so st ates that an or der gr anti ng Who le Foo ds’ 2

m ot io n w oul d be “pu re ly adv is or y ,” ra is ing the spe ct er of an Art ic le I I I p roble m

. Op. at 8. But that is a chim er a. What is out si de the
pow er of fe der al co urts that la ck subject m at te r jurisdi ct io n is adjudica ti on on the mer it s

. In re Papa ndreou
, 139 F.3d 247, 255 (D.C. Cir

. 1998 ); se e Sinochem Int’ l Co. v. Malays ia Int’ l Sh ip p in g Corp.
, 549 U.S. 422, 431 (2007). A co urt that dismisse s cl ai m s or per so ns for la ck of

pers ona l juris dict io n ma

ke s no as sum

ptio n of that

so rt of la w

- dec la ri ng pow er , se e Papa ndreou
, 139 F.3d at 255; it doe s the exa ct oppo si te

. The m ajor it y ’s ci ta ti on to Pre is er v. Newk

ir k
, 422 U.S. 395 (1975), is appro pria te ly half hea rt ed bec aus e the Cour

t in Pre is er w as fa ce d wi th a m er it s ques ti on. See id. at 400 –01.

The m ajor it

y not es the use of diff

er ent la ngua ge in a d if

fere nt 3
par t of the m ot io n t o dism is s, and re as ons that Who le Foo ds pro bably inte nded the sa

m e m ea ning in the por

ti on at is sue

. Op. at 12. One

m ig ht just as ea si ly co m e to the oppo si te co nclu si on, and that w oul d

ce rt ai nly be a f ai re r re ading of

the m ot io n.4

definitions” and “cla ss al l ega tions.” Appellant’s Reply Br

. at 21. And critica lly
, Whole Foods explains in its reply brief that 4 insofar as the motion to dismiss did targ et the claims of putative class members, Whole Foods soug ht to do so independe nt of the putativ e class members themselves. The putative class memb er s ’ claims are nominally prese nt in the case , Whole Fo o d s argue s, even if the class members themselves are not. Appellant’s Reply

Br . at 4.

The majority acknow ledg es the latter point, y et it contends that there is scant authority for Whole Foods’ attempt to dismiss claims without dismiss ing parties. But my colleag ues overlook the fundame ntal proposition that a named plaintiff attempting to bring a class action has two leg ally cog nizable interests. The fi rst is his underly ing claim on the merits; the second is “t h e claim that he is entitled to repr esent a class.” Richards v. Delta Air Lines, Inc.
, 453 F.3d 525, 528 (D.C. Cir. 2006) (quoting U.S. Parole C omm’n v. Geraghty
, 445 U.S. 388, 402 (1980))

. That latter claim of entitlement is what courts adjudi cate when considering motions fo r cl ass cer tification. And if, as Whole Foods arg ues, its own challeng e is aimed at claims independe nt of parties, that nece ssarily i m plies it is challeng ing the named plaintif fs’ alleg ed entitlement to bring those claims on behalf of the putative class members. I n other words, t aking aim at the “cla i m s as serted on behalf of nonresident putative class

m ember s,” Op. at 12 (quoting Appellant’s Br

. at 7), is ju s t a

Ack now le dgi ng that the m ot io n to dism is s is “un co nve ntio nall y 4 fr am ed,” the m ajor it

y suppor ts its re ading w it

h l ang uag e f

ro m Whol e Foo ds’ ope ning brie f on appea l. Op. at 11–1 2. That is doubly unfai r. Not onl y m

ust Who le Foo ds addre ss an is sue fo r the fi rst ti m e on ap p eal
, b ut al so it is penal iz ed fo r the im pre ci se la ngua ge it use d bef or e the cha

ra ct er iz at io n of the m ot io n to dism is s w as ev en at is sue

. I f w e ar e to co nsult any of Who le Foo ds’ fili ngs bey ond the m ot io n it se lf here , it s hould be t

he re ply brie f.5

shorthand for attacking t h e n amed plaintiffs’ ability to pursue those claims. The majority conce des that a district court would abuse its dis cr et ion by permitting nationwide discovery “on claims that Supreme Court prec edent square ly fore closed,” Op.
at 11 (empha sis added)
, so the majority implicitl y also conce des that t h o s e “cla ims” exis t independe nt of the putative class members be fore class ce rtification.

Moreove r, a m o t ion challeng ing class repr esenta tion need
not wait until the plaintiffs move for class cer tification. See Fe d. R. Civ. P. 23(c) (1)( A). The Supreme Court has rec og nized that “[s] ometimes the issues are plain enoug h from the pleading s to deter mine whether t he interests of the absent parties are fairly
encompa ssed within the named plaintiff’s claim.” Gen. Tel. Co.

o f Sw. v. Falcon
, 457 U.S. 147, 160 (1982). I f a name d plaintiff’s claim of entitlement to re prese nt a class is defe ctive

as a matter of law, for example, beca use the court would lac k
persona l jurisdiction over the defe ndan t with respe ct to class claims, a defe ndant’s motion to d i s miss or narr ow the
repr esenta tive claim on those g rounds is not prema ture. 5 Gra nting such a motion would be the “func tional equivalent” of deny ing a motion for class cer tification, and that decision would be a c andidate for int erloc utory appea l. Scott v. Family D ollar Stores, Inc.
, 733 F.3d 105, 110 n.2 (4th Cir. 2013); see Microsoft Corp. v. Bake r , 137 S. Ct. 1702, 1711 n.7 (2017). Whole Foods’ motion attacking the named plaintiffs’ repr esenta tive claim thus was not pre mature.

To be sure, as the majority points out, Whole Foods did not cite Rule 23 in its motion to dismiss

. But that is of littl e

Tw o of our si st er ci rc uits per m it plea ding- st ag e cha ll eng es to 5 cl as s al le ga

ti ons on m ot io ns that inv ok e Rule 12(b)(6)

. See Mc Crar y v. S ti fe l, Nicolaus & Co.
, 687 F.3d 1052
, 1059 (8 th Cir

. 2012 ); John v. Nat’ l S ec

. Fir e & Cas. Co. , 501 F.3d 443 , 444 –45 (5th Cir . 200 7).6

signific ance

. Whole Foods understanda bly reli ed on Rule 12(b)( 2), wh i ch permits a party to “asse rt the .

. . defe nse[] ” of “lac k of persona l jur isdiction.” I f as a matter of law the named plaintiffs seek to bring claims in a represe ntative capacity over which th e d istrict court lacks persona l jurisdiction, the court’s focus will not be on the requirements set out in Rule 23(a) and (b).

The m ajorit y ’s chief authority
, Smith v. Baye r Corp.
, 564 U. S

. 2 99 (2011), is quite beside the point. I n Smith
, t h e Supreme Court held that members of a failed proposed class are not “ parties” for purposes of claim prec lusion and there fore are not bound in later pro ce ed i n gs

. See id. at 312–15. Smith may

or m ay not settle the party status of put ative class members for
persona l jurisdiction purposes, but whether the putative class 6 members are “par

ties” does not matter in this case : as I h ave explained, Whole Foods did not move to dismiss no n re sident putative class members; i t m o v ed to dismiss the named plai ntiffs’ claim to repr esent those putative class members. Smith say s nothing t h at would cast doubt on a district court’s authority to rule on a named plaintiff’s re p re s entative claim at the pleading st age

. I f any thing, Smith remove s a potential

conce rn about pleading -stag e challeng es to cl ai ms of class entitlement since, in the absence of cer tification, putative class members will not be precluded by any thing the court does. Id. I n this case , for example, if Whole Foods wer e to succe ed on its

Smith did not p urpor

t to cha nge the princ iple fr om Dev li n v. 6 Scarde ll et ti
, 536 U.S. 1 (2002), t hat the par

ty st at us of unnam ed cl as s

m em ber s “ma y diff er bas ed on con te xt.” Id. at 10. The m or e

sw ee ping la

ngua ge in Smith upon w hich m y co ll ea gue s re pea te dly re ly thus is ar gua

bly dict um

. This is a m ino r poi nt, how ev er , si nce m y princ ipal co ntent io n is that the par ty st at us o f puta ti ve cl as s m em

ber s is irr el ev ant t o w

hethe r Who le Foo ds’ m ot io n wa s pre m at ure

.7

motion, nonresident putative class members would not be issue
prec luded on the question of persona l jurisdiction in future suits.

I note that numerous district cour ts—not seeing Smith as a barr ier—ha ve ruled on the applicability of Bristol-Myers to class actions on motions invoking Rule 12(b)(2). The dist rict court 7 (and the plaintiffs, for that m at t er ) d i dn’t bat an ey e at Whole Fo o ds’ motion below beca use it was an appropr iate pleadingstag e cha lleng e to the plaintiffs’ c lass alleg ations.

I f the majority wer e corr ect that such motions are prema ture, then a hy

pothetical named plaintiff would be entitled
to extensive class d i s covery even after an on-point decision by

See

, e.g. , Lepper t v. Champion Pet foods USA Inc

. , No. 18 C 7 4347
, 2019 WL 2166 1 6 (N

. D

. Il l. Jan. 16, 2019 ); Lee v. Branch Banking & Tr. Co.
, No. 18- 2187 6- Civ

- Sco la
, 2018 WL 5633 995 (S.D. Fla

. Oct

. 31, 2018 ); Morgan v. U.S. Expr es s, Inc

. , No. 3:17- cv

- 0008 5, 2018 WL 3580 775 (W .D. Va. July 25, 2018 ); Bec ke r v. HBN Me dia, Inc

. , 314 F. Supp

. 3d 1342 (S.D. Fla

. 201 8 ); C h ave z v. Church & D w ig h t Co.
, No. 17 C 1948
, 2018 WL 2238 191 (N.D. I ll

. Ma y 1 6
, 2018 ) (e va luat ing Rule 12(b)(6) m ot io n under Rule 12(b)(2) ); Tic kl ing Key s, Inc . v. Transame ri ca Fin. Advis ors , I nc. , 305 F. Supp. 3d 1342 (M.D. Fla

. 2018 ); Sanchez v. Laun ch Tec h. W ork forc e Sols., LLC
, 297 F

. S upp. 3d 1360 (N.D. Ga. 2018 ); Mc Donnell v. Nature ’s Wa y Prods., LLC
, No. 16 C 5011
, 2017 WL 4864 910 (N.D. I ll

. Oct

. 26, 2017 ); Fitz

henry -Russ el l v. Dr. Pepper Snap ple Grp., Inc

. , No. 17- cv

0056 4, 20 17 WL 422472 3 (N.D. Cal . Sept. 22, 20 17).

Othe r co urts hav e co nside re d the is sue prio r to ce rt if ic atio n on

m ot io ns to st

ri ke al le ga

tion s fr om the co m

plai nt. See

, e.g. , Jones v. Depuy Synthe

s Prods., Inc

. , 330 F.R.D. 298 (N.D. Ala

. 2018 ); Al Haj

v. Pfiz er Inc

. , 338 F. Supp

. 3d 815 (N.D. I ll

. 2018 ). Wh ole F ood s unders ta ndably inv ok ed Rule 12(b)(2)

. But ev en if ano ther Rule w er e

a bett er fi t, the nam ed plai ntif fs nev er objec te d to Wh ole F oo ds’ use of Rule 12(b)(2)
, and I se e no m ea ningf ul diff er ence b et

w ee n the

va ri ous plaus ible opti ons in this co ntext

.8

the Supreme Court concluding
, as I do, that the p ri nciples in Bristol-Myers extend to class actions. I n this case , for instance, the district court noted that “[d] iscovery

. . . in its prese nt form,
p romises to be draw n out, complex, and expensive.” T h e plaintiffs intend to take discovery of pay roll rec ords from more than 2 0 0 W hole Foods g roce ry stores in order to cer tify the nationwide class. And if the alleg ed misconduct appea rs to extend to re l ated opera ting companies, the plaintiffs intend to amend their complaint to expand the class to include employ ees of near ly 300 other stores. Then comes class d i s co very about those stores. I f the named plaintiffs’ nationwide class alleg ation is dismiss ed, howeve r, that number s h ri nks to the five stores opera ted by Whole Fo o d s i n the District. As the district court put it, “[t] he differ ence in scope of these two scena rios need not be belabor ed. ” And, importantly
, there may be incentives for plaintiffs to pursue that discovery eff ort even i f t h e ultimate leg al issue wer e settled.

The majority appea

rs to conce de that if a d i s t rict court p er m i t ted extensive discovery in the fac e of a Supreme Cou rt decision answe ring the cer tified question the way I do, it would constitute an abuse of discretion as a matter of law. But are not courts of appea ls eq u all y oblige d to decide questions of law? There is no rele vant differ ence , in othe r words, betwee n a prior Supreme Cour

t d e c is io n e xte n d ing Bristol-Myers to class actions and a de cision by

this court to that eff

ect. And why

should the Bristol-Myers question be dealt with during discovery instead of
at t h e pleading stag e? I f Whole Foods wer e to prese rve an d
ap p eal a Bristol-Myers -base d objection to the district court’s

n at i onwide discovery ruling s, and if we ag ree d that Bristol-Myers applied, we wo uld hold, like the majority say s, that the district court abused its discretion by making an err or of law. See Koch v. Cox
, 489 F.3d 384, 388 (D.C. Cir. 2007). The

m ajority thus simply has moved the district court’s considera tion of the eff

ect of g overning persona l jurisdiction9

rules on cer

tain “cla ims” to the class discov er y phase. Ag ain I ask, what are these “cla ims, ” i f n ot those of putative class members, used as a shorthand for the repr esenta tive claim of the named plaintiffs? The majority does not s ay , but whateve r t he char acte rization of those claims, if a court can evalua te them for
persona l jurisdiction purposes at d iscovery
, it can do the same at the plea ding stag e. And the latter is more appr opriate in a

ny event beca

use, as I explained, an order g ranting Whole Foods’

m o t i on would be the functional equivalent of a denial of cl as s

cer tification and thus would be a candida te for i n terlocutory
appea l. See Scott
, 733 F.3d at 110 n.2; Microsoft Corp.
, 137 S. Ct. at 1711 n.7.

II.

The issue th at actua lly divided the parties below is what ef fe ct, if any , the Supreme Court’s decision in Bristol-Myer s Squibb Co. v. Superior Cour t of Calif ornia
, 137 S. Ct. 1773 (2 017), has on class actions in fede ral courts. That ques t i o n i s the subject of the order that the district court cer tified. Whole F o o d s a s s e r t s t h a t a f t e r B r i s t o l

- M

y e r s , a c l a s s action—pre sumably in both state and fede ral court—c annot proce ed ag ainst a defe ndant insofar as the suit includes claims of absent cl ass members over which the court lacks persona l jurisdiction. The plaintiffs, on the other hand, arg ue that BristolMye rs doesn’t apply to class actions at al l
, an d t hat even if it does in state courts, it is inapplicable in this case beca use the Fifth Amendment and Fe dera l Rule of Civil Procedur e 23 permit expansive assertions of pe rsonal jurisdiction by fede ral c ourts.

I n Bristol-Myers
, the Supreme Court rea ffirme d the constitutional limit s on a state cour t’s asser tion of persona l jurisdiction over an out-of-state defendant

. See 137 S. Ct. at 1781. (I emphasize “def

endant” beca

use the Court made a point
t o distinguish Phillips Petroleum Co. v. Shutts
, 472 U.S

. 7 9 710

(1985), which dealt with t h e d ue proce ss rig hts of absent class member plaintif

fs
, as i rre levant. S

ee Bristol-Myers
, 137 S. Ct. at 1782–83.).

The Court reiter ated that courts have g ener al jurisdiction

over a corpor ate defe ndant, and may hear any and all claims
ag ainst it, in forums wher e that d ef en dant is fairly reg arde d as at home. Id. at 1780. The place of incorporation and the principal place of busi n es s are the para digm forums for exercising g ener al jurisdiction over corpor ate defe ndants. Daimler AG v. Bauman
, 571 U.S. 117, 137 (2014). F or Whole Foods, t h o se forums are Texas and Delaw are

. (I t is worth noting that the plaintiffs could have avoided this whole persona l jurisdiction imbrog lio simply by drivin g 1 10 miles down the

ro ad and filing this class action in Wil mington.) Other cou rt s may exercise specific jurisdiction over the def endant only

with
respe ct to claims that arise o u t o f or rela te to the defe ndant’s
contac ts with the forum. See Bristol-Myers
, 137 S. Ct. at 1780–81.

Those principles we re established prior to Bristol-Myers

. See id. at 1779–81. Bristol-Myers reje cted almost unanimously

an eff ort by the Californi a Supreme Court to rela x the require ments of specific jurisdiction for eig ht suits broug ht by hundreds of

joint plaintiffs—many of whom alleg ed injuries that had n o connec tion with California. Id. at 1778, 1781. The California S upreme Court had applied what it called a “sli ding scale approa ch” to specific persona l jurisdiction. Id. at 1778. Un d er that approa ch, the g rea ter the defe ndant’s contac ts with the forum, the less direc t the connec tion neede d to be betwee n those contac ts and the out-of-state claims. See id. at 1778–79. I n light of Br istol-My ers’ extensive contac ts with the s tat e, the
state court co n cl u d ed that it had specific jurisdiction over the out-of-state claims beca

use they wer e simil ar in sever al way s to the in-state claims: they wer e base d o n the same alleg edly11

defe ctive product, the same marke ting, and the same promotion of that product. Id. at 1779. The Supreme Court disag ree d, explaining that the exis tence of “similar” in-stat e claims was insufficient to support persona l jurisdiction over the out-of-state claims. See id. at 1781. Due proce ss protec ted Br istol-My ers fro m b eing haled into a state court on claims that had no independe nt connec tion to the forum. Id. at 1780–81.

Although the Supreme Court avoided opining on whether its rea soning in the mass action context would ap p l y al s o to class actions, it seems to me that logic di ctates that it does. 8 After all, like the mass action in Bristol-Myers
, a class action is just a species of joinder, which “mer ely enable s a fe dera l court
to adjud i ca t e claims of multipl e parties at once, instead of in
separ ate su i ts.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. C o. , 559 U.S. 393, 408 (2010) (plurality opinion). And since the require ments of p ersona l jurisdiction must be satisfied independe ntly for “t h e specific claims at issue,” Bristol-Myers
, 137 S. Ct. at 1781, I think t h at persona l jurisdiction over clai m s asser ted on behalf of absent class members must be a

naly zed on a claim-by -cla im basis.

The plaintiffs arg ue, howeve r, that the rea soning of BristolMye rs does not apply to class actions (in state or federa l court) beca use absent class members shoul d not be considere d “par ties” for perso n al-jurisdi ction purposes. The district court ag ree d, following the lead of other courts that have rea d BristolMye rs to apply onl y t o claims asser ted by “re al part[ies] in

I hav e al w ay s bee n w ar

y of Hol m es ’s st at em ent th at the li fe of 8 the la w has not bee n lo gi c, b u t exper ie nce

. See Oli ve r We ndell Hol m es , Jr., T

h e Common Law 1 (1881). Experi enc e, as Hol m es

re adil y co nce ded, incl udes co nside ra ti ons of polic y

. Such

co nside ra ti ons m ay be appro priate in the co m m on la w and in Cong re ss , but not in f

ede ra l c our

ts

.12

interest.” Molock v. W

hole Foods Mkt., Inc.
, 297 F. Supp. 3d 114, 126 (D.D.C. 2018); see id. (collec ting c ases)

. But neither the plaintiffs, nor the district court, nor the courts upon which it relied sufficie ntly explain why party status matters. Some courts (and th e p l ai ntiffs here ) focus on the Supreme Court’s
statements in De vl i n v. Scardelletti
, 536 U.S. 1 (2002), that absent class members may be parties for some purposes and not fo r others, beca

use “[t] he label ‘par

ty ’ does not indicate an ab s olute char acte ristic, but rathe r a conclusion about th e applicability of various proce dural rules that may differ based on context.” Id. at 9–10; see, e.g. , Bristol-Myers
, 137 S. Ct. at 1789

n. 4 (Sotomay or, J
., dissenti n g); Al Haj v. Pfizer Inc.
, 338 F. Supp. 3d 815, 819 (N.D. I l l

. 2 0 18). I n Dev lin
, the Court was fac ed with the question wheth er absent class members can appe al a court-a

pproved settlement. Id. at 7. But the rea son why party status mattere d in Dev lin was that the C o u rt h ad previously hel d that only parties to a lawsuit may appea l an adver se judgme nt. See id. I do not re ad Dev lin to make party status the key

to all disputes about absent cla ss members.

I ndeed, for the question at hand, the party status of ab s ent class members seems to me to be irrele vant. The Court’s focus in Bristol-Myers was on whether limit s on persona l jurisdiction protec t a defe ndant from o ut-of-state claims
, see 137 S. Ct. at 1781, and a defe ndant is subjec t to such claims in a nationwide class action as wel l

. A court’s asser tion of jurisdiction over a defe ndant ex poses i t to that court’s coerc ive power, so such an

asser tion must comport with due proce ss of law. See Goodye ar Dunlop Tires Operations, S.A. v. Brown
, 564 U.S. 915, 918 (2011). A court that adjudicate s claims asser ted on b eh al f of others in a class action exercises coer cive power over a defe ndant just as much as whe n it adjudicates claims of named plaintiffs in a mass action. After all, th e go al o f a nationwide class action is “ a binding judgme nt over the defe ndant as to the claims of the entire nationwide class—and the depriva tion of the13

defe ndant’s proper

ty acc ording ly

. ” 2 Wil liam B. Rubenstein, Ne wber g on Class Actions § 6:26 (5th ed. 2019). And mu ch like the class action mecha nism cannot circ umvent the requi re m en ts of Article I I I
, see Tyson Foods, Inc. v. B o u a p h a keo
, 136 S. Ct. 1036, 1053 (2016) (Roberts, C.J
., concurring ), i t is not a li cense for courts to enter judgme n t s o n claims over which they have no power

. A defe ndant is there fore entitled to due pro ce s s protec tions—including limit s on

asser tions of persona l jurisdiction—with respe ct to all claims in

a class action for which a judgme nt is soug ht. See 2 Rubenstein, Newbe rgon Class Actions § 6:26. 9

The district court also distinguished Bristol-Myers o n the
g roun d t h at t he present class action mus t eventua lly satisfy the require ments o f Fe dera l Rule of Civil Procedur e 23, which, in its view, adequately protec t a defe ndant’s due proce ss ri gh ts. Since Rule 23 ensure s that a defe ndant will be prese nted with a “unitary
, coher ent claim,” as one court put it, some have thought that it is not unfair to bring the defe ndant into a co u rt wh ere it will be sued on local claims any way to provide a “unitary
, coher ent defe nse.” Sanchez v. Launch Tech. W orkforce Sols.
, 297 F. Supp. 3d 1360, 1366 (N.D . Ga. 2018)

.

I d o n o t think, howeve r, that Rule 23’s standards are an adequa te substitut e for normal pri n ci ples of persona l j u ri s diction. On its fac e, the Rule primarily focuse s on t h e rela tionship betwee n the claims of the named repr esenta tives

For th e sam e re as ons , ev en if the plai ntif fs ’ bro ad re ading of 9 Dev li n w er e co rrect (i

. e. , that par ty st at us is the rel ev ant inquiry
, one that depends on co ntext ), I w oul d co nclude that abs ent cl as s m em ber s

ar e par ti es fo r purpos es of per so nal jurisdi ct io n ov er the def endant

. The rele van t “co ntext ” her e is the se t of princ iple s that li m it s co urts fr om hol ding def

endant s li able fo r out

- of

- st at e cl aim s, w hich is
pre ci se ly the r el ie f tha

t thi s na ti onw ide c la ss ac ti on s ee ks

.14

and the a bsent class membe rs. Much of it could be de scribed 1 0

as requiring sufficie nt simil arity betwee n those claims. But as 1 1 descr ibed above, using the “similarity ” of claims t o relax the standards of persona l jurisdiction was one of the mist ak es t hat the state court made in Bristol-Myers

. See 137 S. Ct. at 1779, 1781. The Supreme Court explained that even wher e the claims
at issue are simil ar, limit s on persona l jurisdiction g uard ag ainst

more than j ust inconvenienc e for a defenda nt. They g o to “the

more abstrac t matter of submitt ing to the coer cive powe r of a State that may have littl e leg itimate interest in t h e claims in question.” Id. at 1780. I n this case , for exam p l e, states wher e Wh o l e Foods does only some of its business may have no

connec tion to, and no leg itimate interest in, claims arising from Whole Foods’ dealing s elsewhe re. Rule 23 and it s state analog ues offe r no protec tion in that respe ct; limit s on persona l jurisdiction do. To be sure, it may not immediately be appar ent how that “more abstrac t” interest protec ted by limit s on persona l jurisdiction is implicated by a suit in fede ral court, but as I shall explain, Fe dera l Rule of Civil Procedur e 4(k)( 1)(A) supplies the

same conce rn for horizontal fede ralism. For now, the point is that Rule 23 and its state analo gu es are not a substitut e for normal limits on personal jurisdiction.

I n the alterna

tive, the plaintiffs contend that even if BristolMye rs applies to class actions g en er ally
, fede ral courts are

The Rule re quire s, inte r alia
, that ther e are quest io ns o f la w or 1 0 fa ct co m m on to th e cl ass, that the cl ai m s or def ens es of the

re pre se ntat iv e par

ti es ar e ty pica l of the cl ai m s or def

ens es of the cl as s, and that the re pre se ntat iv e par ti es w il l fa ir ly and ade quate ly pro te ct the i nter es ts of

the c la ss

. See Fed. R. Civ . P. 2 3(a ).

S ee Fed. R. Civ

. P. 23(a) ; id. R. 23(b)(3) (r equir ing tha t 1 1

co m m on quest io ns of la

w or fa ct pre dom inat e ov er quest io ns af fe ct ing onl y indiv idual cl as s m em

ber s)

.15

permitted by the Fifth Amendment and Rule 23 t o exercise
persona l juri s diction over the nationwide claims at issue here

. Unlike in state courts, wh i ch are g overne d by the Four teenth Am endment, due proce ss limit ations on fede ral courts ar e g overne d by the Fifth Amendment. Livnat v. Palestinian Auth.
, 851 F.3d 45, 54 (D.C. Cir. 2017)

. I n both c ontext s, courts may exercise specific jurisdiction over a defe ndant only if the claims
at i s s u e arise out of or rela te to the defe ndant’s minimum
contac ts with the forum. See id. at 48, 54–55. The scope of the rele vant contac ts can differ betwee n state and federal courts, howeve r, beca

use the rele vant “for

um” can differ

. Id. at 55. The forum for a state court is the s tate it sel f. Id

. But standing alone, the Fifth Amendment require s only t h at the claims at issue in a fede ral co u rt ar ise out of the defe ndant’s minimum
contac ts with the United States as a whole. Id. ; see In re Sealed Case
, 932 F.3d 915, 925 (D.C. Cir. 2019)

. Thus nothing in the Constit ution would preve nt Congr ess from authorizing a fede ral
court to exercise specific p er s onal jurisdiction over claims in thi s n at ionwide class action, so long as the claims arise out of Whole Foods’ minimum contacts with the United States.

Bu t Congr ess has done no such thing. Congr ess ty pica l l y authorizes us to exercise persona l jurisdiction by way of statutes

or Rules that authorize s ervic e of proce ss on a defe ndant. See BNSF Ry. Co. v. Tyrell
, 137 S. Ct. 1549, 1 5 5 5 (2 0 1 7). The
g overning Rule in this case is Fe dera l Rule of Civil Procedur e 4(k)( 1)(A)
, which rea ds in rele vant part , “(1) In Gene ral

. S er v ing a summons or filing a waiver of service establis h es persona l jurisdiction over a defe ndant: (A) who is subject to the jurisdiction of a court of g ener al j urisdiction in the s tate w h ere the district court is located.” The eff ect of this provision is that in the absenc e of another statute or Rule expanding the rea ch of eff ective service of proce ss, a district court’s analy s i s of
p er s o nal jurisdiction in a civil action will be identical to the Four teenth Amendment inquiry underta ken by the rele vant state16

court. In re Sealed Case
, 932 F.3d at 924. No o t h er statute or Rule curr ently authorizes a more expansive asser tion of persona l jurisdiction in this case , See 2 Ru benstein, Newbe rg on Class Actions § 6 :26, so the district court may exercise persona l j u ri s d iction over Whole Foods only with respe ct to claims arising out of or rela ting to it s co ntacts with the District of Columbi a. 1 2

The plaintiffs an d an amicus contend that while Rule 4(k)( 1)(A) limit s the rea ch of the district court’s persona l jurisdiction over Whole Foods at the outset of the suit, the Rule has no forc e when absent class members’ claims are later added
to the suit at certification. Otherw ise, they arg ue, all class members would be require d to serve proce ss on Whole Foods at

cer tification, which obviously is not the law.

This arg ument eq u at es the method of service that Rule 4(k)( 1) provides for initiating suits g ener ally (“[s ]erving a

sum m o n s or filing a waiver of service ”) with the territoria l limit ations on amena

bility to service (a nd there fore persona l jurisdiction) set out in that provision’s s u bsections. See Omni Capital Intern., Ltd. v. Rudolf W olff & Co., L t d

. , 484 U.S. 97, 103 n.6 (1987) (distinguishing betwee n the two). The former applies only when the suit is initiated, but t h e l atter rema in
opera tive throug hout the proce eding s. A mended complaints, for example, are usually serve d on defe ndants p u rsuant to Rule 5(a) (1), but the claims they contain are still subject to the limit s

T he Fede ra l Rule s of Civ il Pro ce dure tr ea t the Dis tr ict of 1 2 Col um bia as a “sta

te .” Fed. R. Civ

. P. 81(d)(2)

. The Dis tr ic t, in turn, ge ner al ly co nstr

ues the re le va

nt por ti ons of it s lo ng- ar

m st at ute to be

co exte nsiv e w it

h the li m it s se t b y the Due Pro ce ss Cla use of the Four te enth Am endm ent. See F o rra s v. Rauf

, 812 F.3d 1102
, 1106 (D.C. Cir . 2016); Mouzavi re s v. Baxte r , 434 A.2d 988, 990–91 (D.C. 1981 ) (e n banc) (per

curi am ).17

of the applicable subsection of Rule 4(k)( 1). See, e.g. , Old Republic Ins. Co. v

. Cont’l Motors, Inc. , 877 F.3d 895, 902–03 (10th Cir. 2017) (eva luating amende d complaint under Rule 4(k)( 1)(A) ). Other wi s e, litigants could easily sidestep the territoria l l i m i t s on persona l jurisdiction simply by adding claims—or by adding pl ai ntiffs, for that matter—a fter comply ing with Rule 4(k)( 1)(A) in their firs t filing. That, too, i s d ec i dedly not the law. So while absent class members will
not be require d to serve proce ss on Whole Foods under Rule 4(k)( 1) at cer

tification, the territoria l limit on p ersona l jurisdiction set out in Rule 4(k)( 1)(A) will still be in eff ect. See generally A. Be njamin Spencer
, Out of the Quandary: Personal Jurisdiction Ove r Absent Class Mem ber Claims Explained
, 39 Rev. of L itig. 31 (2019)

.

The continuing eff

ect of Rule 4(k)( 1)(A) ’s territoria l limit ation at the class cer tif i ca t ion stag e also rebuts the plaintiffs’ contention that Rule 23 of its own forc e authorizes district courts to adjudi ca t e nationwide claims. Rule 23’s standards for cer

tify ing fede ral class ac t i o ns do not addre ss persona l jurisdic t i o n , eit her expli citly or implicitl y

. Cf. In re Sealed Case
, 932 F.3d at 925. The same g oes fo r t h e C lass Action Fa irness Ac t. See 28 U.S.C. § 1332(d).

* * *

The plainti ff

s and an amicus contend that my conclusions would have a devasta

ting impact on the viability of class actions. I think that predic tion is vastly overstate d. As I pointed
out above, these plaintiffs could have broug ht a nationwide class action ag ainst Whole Foods in Delaw are without an y persona l jurisdiction difficulties. C f

. Bristol-Myers
, 137 S. Ct. at 1783. And Whole Foods employ ees may be able to file statewide class actions in their own respe ctive states. Cf. id. Fur ther, my views do not call into question the use of multidi strict litigation, since18

case s subject to that proce ss are eventua lly returne d to their orig inal courts for trial purpose s

. See Lexec on Inc. v. Milberg W eiss Bershad Hyne

s & Lerach
, 523 U.S. 26, 34, 40 (1998); 28 U.S.C. § 1407(a).

Moreove r, the limits that do follow from a pply ing BristolMye rs to c lass actions in f eder al court are no differ ent from the l i m i t s that apply when individual plaintiffs sue on their own b eh al f, and that must be tolerate d under curr ent law. For example, it is true that plaintiffs likely would be unable to bring

a unitary nationwide class action ag ainst two or more defe ndants who are subject to g ener al jurisd i ct i o n in differ ent states. Cf. Bristol-Myers
, 137 S. Ct. at 1789 (Sotomay or, J
., dissenting)

. And it is h ar d to see how a nationwide class action could
proce ed ag ainst a fore ign defe ndant who is not subject to g ener al jurisdiction any

wher e in the United States, at least in diversity

case s. Cf. id ; Fe d. R. Civ. P. 4(k)( 2). But sim i l ar l y an individual plaintiff—not a class action—ordina rily cannot bring these sorts of d ef

endants into a court to answe r to claims that have nothing to do with the forum. And p ro cedur al tools like class actions and mass actions are not an ex ception to ordinary principles of persona l jurisdiction. The Court was appar ently willing to live with the conseque nces of that fac t in B r i stolMye rs , see 137 S. Ct . 1789 (Sotomay or, J., dissenting) , and we should do likewise. 1 3

Since the Court m ade cl ea r in Bri st ol-M ye rs that it w as m er el y 1 3 apply ing se tt le d la

w , 137 S. Ct. at 1781
, 1783
, it is ra ther puzzl ing that cha ll eng es to cl as s ac ti ons on thes e gr ounds w er e not ra is ed until

re ce ntly

. Bri

st ol-M ye rs se em s to hav e fo cus ed the at tentio n of def endant s on the impli cati ons of the Cour t’s prio r per so nal jurisdi ct io n deci si ons

.