IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LAURA MATTHEWS, )

Plaintiff, )

 )

v. )

 )

BROOKSTONE STORES, INC., et al., )

Defendants. )

 ) CIVIL ACTION 05-0369-WS-C

 )

BROOKSTONE STORES, INC., )

Third-Party Plaintiff, )

 )

v. )

 )

D&M SALES, INC., )

Third-Party Defendant. )

ORDER

This matter is before the Court on plaintiff Laura Matthews’ Motion to Conduct

Jurisdictional Deposition (doc. 65). On December 12, 2005, defendant Christopher Lozzio filed

a Motion to Dismiss Plaintiff’s Revised First Amended Class Action Complaint (doc. 58) along

with supporting materials. Lozzio maintains that plaintiff’s claims against him should be

dismissed for lack of personal jurisdiction, improper venue, and failure to state a claim upon

which relief can be granted. On December 16, 2005, the undersigned entered an Order (doc. 64)

directing any party opposing the Motion to file a response on or before December 28, 2005, with

replies to be due on or before January 6, 2006.

Plaintiff now comes forward and requests an opportunity to conduct limited jurisdictional

discovery to investigate Lozzio’s contacts with this forum and, more generally, whether he may

properly be haled into court in the State of Alabama. Federal courts have generally authorized

such discovery antecedent to resolving Rule 12(b)(2) motions to dismiss for want of personal

jurisdiction. See, e.g., In re Magnetic Audiotape Antitrust Litigation, 334 F.3d 204, 206 (2nd Cir.

2003) (reversing dismissal of claims against defendant for lack of personal jurisdiction where

lower court denied plaintiffs’ request to engage in jurisdictional discovery prior to dismissal);

Case 1:05-cv-00369-WS-C Document 66 Filed 12/27/05 Page 1 of 3
1 Alabama state courts have echoed their federal counterparts’ demonstrated

willingness to permit such discovery at the motion to dismiss stage. See Ex parte Troncalli

Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 467-68 (Ala. 2003) (acknowledging that while

there is no automatic right to discovery pertaining to personal jurisdiction, court has power to

require defendant to respond to discovery requests relevant to motion to dismiss for lack of

jurisdiction).

-2-

Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.7 (11th Cir. 1999) (recognizing qualified right to

conduct jurisdictional discovery); In re Nazi Era Cases Against German Defendants Litigation,

320 F. Supp.2d 204, 214 (D.N.J. 2004) (where defendant asserted defense of lack of personal

jurisdiction, recognizing plaintiffs’ right to conduct jurisdictional discovery if their allegations

suggest that facts may exist to support exercise of personal jurisdiction); Arista Records, Inc. v.

Sakfield Holding Co. S.L., 314 F. Supp.2d 27, 29 (D.D.C. 2004) (explaining that “[a] plaintiff

faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable

discovery, lest the defendant defeat the jurisdiction of a federal court by withholding information

on its contacts with the forum”) (citation omitted); Orchid Biosciences, Inc. v. St. Louis

University, 198 F.R.D. 670, 672 (S.D. Cal. 2001) (explaining that where pertinent facts bearing

on jurisdictional question are in dispute, discovery should be permitted during pendency of

motion to dismiss, irrespective of whether plaintiff establishes prima facie case of personal

jurisdiction prior to such discovery); see also Eaton v. Dorchester Development, Inc., 692 F.2d

727, 731 (11th Cir. 1982) (holding that district court erred by dismissing action for lack of subject

matter jurisdiction without affording plaintiff opportunity to elicit discovery sufficient to support

a determination on jurisdiction issue).1

Accompanying a previous motion to dismiss in this action, Lozzio presented an affidavit

(doc. 47) containing, inter alia, averments that he has never conducted any business, either

personally or on D&M’s behalf, in Alabama; that he has never traveled to or been present in

Alabama; and that he has never transacted business, contracted to supply goods and services, or

had an interest in real property in Alabama. Plaintiff’s counsel questions the veracity of these

and other assertions in the affidavit, but contends that plaintiff lacks evidence to refute them

without access to jurisdictional discovery.

Pursuant to the foregoing authorities and in the exercise of its discretion, the Court

Case 1:05-cv-00369-WS-C Document 66 Filed 12/27/05 Page 2 of 3
-3-

grants Plaintiff’s Motion to Conduct Jurisdictional Deposition, and orders Lozzio to undertake

all reasonable efforts to make himself available at a mutually convenient time on or before

January 12, 2006 for a preliminary deposition for the limited purpose of enabling plaintiff’s

counsel to inquire into personal jurisdiction issues implicated by the Motion to Dismiss. This

deposition may not stray to merits issues or issues pertaining to Lozzio’s Rule 12(b)(6) defense,

but must be narrowly tailored to the personal jurisdiction issue. This preliminary deposition is

not a substitute for, and in no way shall preclude, a full-blown merits deposition of Lozzio

during the ordinary course of discovery if the Motion to Dismiss is denied. The parties are

directed to confer and cooperate in good faith in determining the logistics of the deposition,

including its date, time, location, and mode (e.g., in person, telephonic, videoconference, etc.). 

To be clear, the sole discovery authorized by this Order is a jurisdictional deposition of

Christopher Lozzio, and no further jurisdictional discovery is contemplated by this Order or will

be permitted without prior leave of Court.

In light of this ruling, the December 16 Order (doc. 64) is amended to provide that

Matthews’ opposition brief to Lozzio’s Motion to Dismiss must be filed on or before January

20, 2006, and that Lozzio’s reply brief is due on or before January 27, 2006. If the Court

determines that oral argument is necessary, the parties will be notified and a hearing will be

scheduled. Otherwise, the Motion will be taken under submission after January 27, 2006.

DONE and ORDERED this 22nd day of December, 2005.

s/ WILLIAM H. STEELE 

UNITED STATES DISTRICT JUDGE

Case 1:05-cv-00369-WS-C Document 66 Filed 12/27/05 Page 3 of 3