Womble Bond Dickinson v. Kim

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                                                         Electronically Filed
                                                         Supreme Court
                                                         SCPW-XX-XXXXXXX
                                                         18-OCT-2023
                                                         08:27 AM
                                                         Dkt. 60 OP




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                              ---o0o---


WOMBLE BOND DICKINSON (US) LLP; SHOOK, HARDY & BACON L.L.P.; and
              COVINGTON & BURLING LLP, Petitioners,

                                 vs.

                 THE HONORABLE ROBERT D.S. KIM,
     Chief Judge of the Circuit Court of the Third Circuit,
               State of Hawaiʻi, Respondent Judge,

                                 and

MARVIN MANIOUS; VALERIE MANIOUS; R.J. REYNOLDS TOBACCO COMPANY;
 PHILIP MORRIS USA, INC.; LIGGETT GROUP LLC; GREENSPOON MARDER
 LLP; FOODLAND SUPER MARKET, LIMITED; J. HARA STORE, INC.; and
                   WALMART INC., Respondents.


                          SCPW-XX-XXXXXXX

                        ORIGINAL PROCEEDING
                    (CASE NO. 3CCV-XX-XXXXXXX)

                          OCTOBER 18, 2023

          RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ.,
  CIRCUIT JUDGE TONAKI IN PLACE OF NAKAYAMA, J., RECUSED, AND
     CIRCUIT JUDGE MALINAO, IN PLACE OF WILSON, J., RECUSED

                OPINION OF THE COURT BY EDDINS, J.
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                                 I.

     Three law firms petition this court to order a judge to get

them out of a case.    They argue the Circuit Court of the Third

Circuit lacks jurisdiction to hale them into Kona - side by side

with the tobacco companies they long-counseled - in a products

liability, fraud, and conspiracy suit.

     The circuit court relied on conspiracy jurisdiction to

invoke jurisdiction.    Not only is that theory of specific

personal jurisdiction unconstitutional, the law firms maintain,

but this court has never endorsed conspiracy jurisdiction.       And

we shouldn’t now.    But if we did, the court still lacks

jurisdiction - the pleadings and the evidence produced at a

Hawaiʻi Rules of Civil Procedure Rule 12(b)(2) motion to dismiss

were insufficient.

     We adopt conspiracy jurisdiction.     Still, the circuit court

lacked personal jurisdiction.    The law firms are out.

                                 II.

     In March 2022, Marvin Manious and Valerie Manious

(plaintiffs) sued ten defendants: Philip Morris USA Inc. (Philip

Morris); RJ Reynolds Tobacco Company (Reynolds); Liggett Group

LLC (Liggett); Shook, Hardy & Bacon L.L.P. (Shook); Covington &

Burling L.L.P. (Covington); Greenspoon Marder L.L.P.; Womble

Bond Dickinson (US) L.L.P. (Womble); Foodland Super Market; J.



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Hara Store; and Walmart.   The Maniouses filed their suit in the

Circuit Court of the Third Circuit.

     Plaintiffs are Hawaiʻi residents.    Marvin Manious has

laryngeal cancer.   Smoking cigarettes caused his cancer, the

Maniouses allege.   Those cigarettes were “designed,

manufactured, advertised, marketed, distributed and/or sold” by

Defendant R.J. Reynolds Tobacco Company.     Plaintiffs say Philip

Morris, Reynolds, and Liggett advertised and marketed cigarettes

in Hawaiʻi and that Foodland, J. Hara, and Walmart operated

retail outlets where Marvin Manious bought his cigarettes.

     Plaintiffs brought product liability, fraud, and conspiracy

claims against the cigarette manufacturers and retailers.       They

also brought two conspiracy counts specifically against the law

firms.

     Why sue the law firms?    Plaintiffs allege the cigarette

companies “utilized” the law firms as in-house and outside

counsel to “conceal and misrepresent the harms of smoking

cigarettes, secondhand smoke, . . . and the addictive qualities

of nicotine.”   Their complaint claims the cigarette companies

hired the law firms beginning in the 1950s “to assist them in

their conspiratorial activities which included to conceal and

misrepresent the harms of smoking and its addictive nature to

the public.”



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     According to Plaintiffs, the law firms “played a central

role in the creation and perpetuation of the conspiracy and the

implementation of its fraudulent schemes throughout the United

States as well as in Hawaiʻi.”   Plaintiffs say that the law firms

oversaw scientific research, reviewed advertisements, and

provided false testimony to government agents.      They directed

their conduct “throughout the United States, including to the

State of Hawaiʻi.”

     Plaintiffs allege that the law firms orchestrated a

conspiracy through an association known over time as the

“Committee of Counsel.”    One count claims that the law firms

conspired to commit fraudulent concealment:     “As a direct and

foreseeable result of the law firms’ fraudulent conduct in

assisting Philip Morris, RJ Reynolds, Liggett and their co-

conspirators conceal the health effects and addictive nature of

cigarettes, consumers in Hawaiʻi, including Marvin Manious, were

not aware of the true harms and addictive nature of cigarettes.”

     The complaint alleges in another count that the law firms

conspired to commit fraudulent misrepresentations.      Factually,

the complaint’s fraudulent concealment and fraudulent

misrepresentations counts are mirror images.

     The law firms each moved to dismiss under Hawaiʻi Rules of

Civil Procedure (HRCP) Rule 12(b)(2) for “lack of jurisdiction

over the person.”    They make similar, though not identical,

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arguments for dismissal.   They contend that Hawaiʻi courts lack

general and specific jurisdiction over them.

     Plaintiffs counter that the complaint supports specific

jurisdiction because it alleges that the law firms were engaged

in a conspiracy with a goal to maximize the sale of cigarette

products throughout the United States, including Hawaiʻi.

Plaintiffs maintain that the law firms conspired with the

cigarette companies and retailers to specifically target Hawaiʻi

“with fraudulent advertisements and marketing materials,

misinformation, and misleading statements.”

     Plaintiffs submitted 49 exhibits, totaling hundreds of

pages, to back their position that the law firms “conspired with

others to create a massive fraud that reached into Hawaiʻi.”      And

for the first time, Plaintiffs introduced conspiracy

jurisdiction to support the court’s specific personal

jurisdiction.

     Shook’s reply memorandum points out that watermarks

populate Plaintiffs’ documents, meaning that “most of

Plaintiffs’ exhibits come from the searchable Truth Tobacco

Industry Documents database.”    That database is “[a]n archive of

14 million documents created by tobacco companies about their

advertising, manufacturing, marketing, scientific research and

political activities.”   See



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https://industrydocuments.ucsf.edu/tobacco/

[https://perma.cc/4UB8-HLT2].

     In October 2022, the circuit court ruled it had

jurisdiction over three of the law firms (Shook, Covington, and

Womble).   The court entered pithy orders denying the motions to

dismiss.   Conspiracy jurisdiction defeated the law firms’

12(b)(2) motions.    “The Court finds and concludes that it may

exercise personal jurisdiction . . . based on conspiracy

jurisdiction.”    The court did not make minimum contacts findings

or undertake any due process analysis.

     The court granted without prejudice Greenspoon’s motion to

dismiss.   Later, Plaintiffs and Greenspoon submitted a joint

stipulation dismissing that law firm as a defendant with

prejudice.   The court signed off.    Greenspoon was out.

     The remaining law firms moved for leave to file an

interlocutory appeal and stay the proceedings.      The court denied

those motions.

     About one week later, the law firms petitioned this court.

They request a writ of prohibition enjoining the circuit court

from exercising personal jurisdiction over them, or

alternatively for a writ of mandamus ordering dismissal for lack

of personal jurisdiction.    The law firms urge us to reject

conspiracy jurisdiction as a way to invoke specific personal

jurisdiction.    But should we adopt conspiracy jurisdiction, it

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does not operate to hale them into the third circuit, they

maintain.    The law firms’ writ poses two questions:

            1. Does a circuit court violate the Due Process Clause of
            the U.S. Constitution and thus exceed its jurisdiction when
            it purports to exercise personal jurisdiction over a
            defendant based on the “conspiracy theory of personal
            jurisdiction”?

            2. Even if the “conspiracy theory of personal jurisdiction”
            were valid under current U.S. Supreme Court precedent, did
            the circuit court exceed its jurisdiction here where it
            purported to exercise personal jurisdiction over the Law
            Firms despite the absence of any evidence that substantial
            steps in furtherance of the conspiracy were taken in
            Hawaiʻi, or that the alleged conspiracy targeted Hawaiʻi?


     We answer question 1 No.

     We answer question 2 Yes.

                                    III.

                                     A.

     To bring a defendant to our courts, a plaintiff must

establish personal jurisdiction.          Courts invoke personal

jurisdiction through general or specific jurisdiction.             See

Goodyear Dunlop Tires Operations, S.A. v. Brown, 

 (2011).

     The parties agree on one thing.          There is no general

jurisdiction.

     There’s no place other than home for general jurisdiction.

A business entity has two home states: its place of

incorporation and its principal place of business.            BNSF Ry. Co.

v. Tyrrell, 

 (2017).          The law firms are not “at


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home” in Hawaiʻi.    See Ford Motor Co. v. Montana Eighth Jud.

Dist. Ct., 

 (2021).     Here, Shook is

incorporated in Missouri, and has its principal place of

business there.     Covington is incorporated under Delaware law

and has its principal place of business in the District of

Columbia.   Womble is incorporated in North Carolina, and has its

principal place of business there.

     Since the court lacks general jurisdiction, Plaintiffs must

show specific jurisdiction.

                                  B.

     Hawaiʻi courts first consider whether Hawaiʻi Revised

Statutes (HRS) § 634-35 (2016) allows specific jurisdiction.

See Yamashita v. LG Chem, Ltd., 152 Hawaiʻi 19, 21, 

 (2022).     Typically, Hawaiʻi’s long-arm statute is not

decisive.   Instead, it blends into the due process analysis.

Id. at 22, 

.     Hawaiʻi law “allows Hawaiʻi courts

to invoke personal jurisdiction to the full extent permitted by

the due process clause.”     Id. at 21, 

.

     Specific jurisdiction over out-of-state defendants is based

on “minimum contacts.”     International Shoe Co. v. State of Wash.

Off. of Unemployment Comp. & Placement, 

(1945).   To protect out-of-state actors’ due process rights,

courts rely on a three-part specific jurisdiction test: (1) the

nonresident defendant must “purposefully avail[]” itself of the

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privilege of conducting activities within the forum state; (2)

plaintiff’s claims “must arise out of or relate to the

defendant’s contacts” within the forum; and (3) the exercise of

jurisdiction must “not offend traditional notions of fair play

and substantial justice.”   Ford Motor Co., 

-

25.

      International Shoe still fits.   But Shoe’s well-worn

standards of “fair play,” “justice,” and “minimum contacts”

clash with the way courts determined personal jurisdiction in

the very old days.   See Pennoyer v. Neff, 

(1877) (holding that courts lack jurisdiction over defendants

who are not physically present in that state or who have not

consented to jurisdiction).

      Some justices hint that personal jurisdiction law should

revert to the 19th century economy’s “tag” rule.      See Ford Motor

Co., 

 (Gorsuch, J., concurring) (noting that

courts could revive the “old ‘tag’ rule” to hale corporations

into court); Mallory v. Norfolk S. Ry. Co., 

,

2040 (2023) (signaling that the original public meaning of

personal jurisdiction entails the “traditional tag rule” and

suggesting that a state registration law requiring a corporation

to consent to jurisdiction operates like that procedure).

      Playing tag would seem to unravel long-arm statutes like

HRS § 634-35.   A state registration statute may preserve

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jurisdiction over corporations conducting business in a state.

But what about other businesses, shell companies, and

individuals that do not enter or remain in a forum state?       See

Shaffer v. Heitner, 

 (1977) (“The Pennoyer

rules generally favored nonresident defendants by making them

harder to sue.”).

     For now, plaintiffs and defendants are not playing tag like

it’s 1868.   Today, defendants must have minimum contacts with

the forum state such that exercising jurisdiction over a

defendant does not offend traditional notions of fair play and

substantial justice.

     First, plaintiffs must show purposeful availment.

Purposeful availment occurs when a defendant purposefully

directs activities toward the forum, or performs some act to

invoke the benefits and protections of its laws.      In Interest of

Doe, 83 Hawaiʻi 367, 374, 

 (1996).

     Plaintiffs allege the law firms “played a central role in

the creation and perpetuation of the conspiracy and the

implementation of its fraudulent schemes throughout the United

States.”   Going nationwide though does not mean a defendant

purposefully directs conduct at any particular state.

Nationwide conduct does not blow an unpoppable jurisdictional

bubble that follows plaintiffs wherever they go.      See J.

McIntyre Machinery, Ltd. v. Nicastro, 

, 885-86

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(2011) (explaining that a defendant’s national conduct covering

all states does not “establish[] that [the defendant] engaged in

conduct purposefully directed at” any particular state.)      “The

placement of a product into the stream of commerce, without

more, is not an act of the defendant purposefully directed

toward the forum State.”   Asahi Metal Indus. Co., Ltd. v. Super.

Ct. of California, Solano Cnty., 

 (1987).

     Plaintiffs’ claims also do not arise out of or relate to

the law firms’ contacts with Hawaiʻi.    The law firms have no

state contacts by themselves.    And any indirect contacts are not

related to the cause of action.    “Relate to” incorporates real

limits.   See Ford Motor Co., 

.

     The circuit court understood the problem traditional

specific personal jurisdiction posed to hale the law firms into

the Third Circuit.    Only conspiracy jurisdiction brought the law

firms to Kona, the court ruled.

     Next, we consider conspiracy jurisdiction.

                                  C.

     Conspiracy jurisdiction is a type of specific jurisdiction.

It allows a court to invoke jurisdiction over a conspiring out-

of-state defendant.   If a co-conspirator takes sufficient action

in the forum state, a defendant’s own state contacts are

immaterial.   The acts of a co-conspirator within a state may



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support jurisdiction.     See In re Platinum & Palladium Antitrust

Litig., 

, 269 (2d Cir. 2023).

       Commonly, specific personal jurisdiction based on

conspiracy jurisdiction has three elements: “(1) a conspiracy

(2) in which the defendant participated and (3) a co-

conspirator’s overt act within the forum, subject to the long-

arm statute and in furtherance of the conspiracy.”       Youming Jin

v. Ministry of State Sec., 

 (D.D.C. 2004)

(cleaned up).

       The law firms believe conspiracy jurisdiction violates the

due process clause.     They say Walden v. Fiore, 

(2014) “undercut the very foundation of conspiracy

jurisdiction.”

       In Walden, law enforcement officers stopped a man at the

Atlanta airport.     They seized the man and his money before he

boarded a flight home to Nevada.       

.   He sued

the officers in Nevada, alleging they falsified affidavits to

justify taking his property.     

    One officer (Walden) argued

the court lacked personal jurisdiction over him since he did not

have minimum contacts with Nevada.       

.

       Walden won.   Minimum contacts focus on the defendant’s

contacts with the state, not the plaintiff’s contacts.        

.    Walden’s only connection to Nevada was knowledge the

plaintiff lived there.     The “plaintiff cannot be the only link

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between the defendant and the forum.”     

 (emphasis

added).   “The proper question is not where the plaintiff

experienced a particular injury or effect but whether the

defendant’s conduct connects [them] to the forum in a meaningful

way.”   

.

     Walden demands a defendant-focused inquiry.      Like Ford

Motor Co. and other personal jurisdiction cases, Walden fastens

the inquiry to the defendant’s contacts.     “[I]t is the

defendant, not the plaintiff or third part[y], who must create

contacts with the forum State.”    

.

     Because of the “third party” language, the law firms argue

that Walden precludes conspiracy jurisdiction.      True, a

defendant’s relationship to a third party is insufficient.

Courts may not exercise personal jurisdiction over a defendant

based only on someone else’s conduct.     Yet Walden says nothing

about a defendant who participates in a conspiracy that

substantially targets a forum state – and knows it.

     A co-conspirator isn’t like a third party.      Typically, a

co-conspirator is a co-defendant.      Co-conspirator relationships

do not resemble a defendant’s singular relationship with a

plaintiff or a third party.    A conspiracy needs conspirators.

Co-conspirators join forces to achieve an objective.      One co-

conspirator may commit overt acts in a state, while another co-

conspirator may not.   “In a conspiracy, an individual’s actions

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in furtherance of the conspiracy are not unilateral because

conspiratorial acts have at their foundation an agreement and

the involvement of other co-conspirators.”     Santa Fe Techs.,

Inc. v. Argus Networks, Inc., 

 (N.M. Ct. App.

2001).

     Co-conspirators resemble agents more than third parties.

“[B]ecause a conspiracy is a type of agency relationship, an act

taken during the course of a conspiracy relationship may lead to

specific personal jurisdiction over a defendant.”      Raser Techs.,

Inc., by & through Houston Phoenix Grp., LLC v. Morgan Stanley &

Co., LLC, 

, 167-68 (Utah 2019).     “[C]ivil co-

conspirators, like criminal co-conspirators, act as agents of

one other when engaging in acts in furtherance of their

conspiracy.”   Mackey v. Compass Mktg., Inc., 

(Md. 2006).

     Comparing co-conspirators to agents is mistaken, the law

firms contend.   Defendants control agents, not necessarily their

co-conspirators.   We do not believe this distinction makes

agency irrelevant to conspiracy jurisdiction.     Walden recognized

that an agent’s in-state acts operate as a “relevant contact”

for due process purposes.   And an agent’s acts are within the

reach of Hawaiʻi’s long-arm statute.    See HRS § 634-35 (reaches

those who act “in person or through an agent.”).      While



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conspiracy and agency relationships are not exactly the same,

they are closely related.

     So no, Walden doesn’t doom conspiracy jurisdiction.

Rather, it keeps the jurisdictional analysis focused on what a

defendant knew and did.

     Post-Walden cases endorse conspiracy jurisdiction.      For

instance, in Nevada, the court parsed Walden and decided that

conspiracy jurisdiction provides a basis for personal

jurisdiction if the conspirators reasonably expect their actions

to have consequences in the forum state.     Tricarichi v. Coop.

Rabobank, U.A., 

 (Nev. 2019).      Utah also

adopted conspiracy jurisdiction where “the defendant could have

reasonably anticipated being subject to jurisdiction in the

forum state because of [their] participation in the conspiracy.”

Raser Techs., 449 P.3d at 170.    And Tennessee reinforced its

pre-Walden position that conspiracy jurisdiction is a basis for

specific jurisdiction.    See First Cmty. Bank, N.A. v. First

Tennessee Bank, N.A., 

 (Tenn. 2015).

     After Walden, the Second Circuit kept conspiracy

jurisdiction.   The Supreme Court, it observed, has not

“delineated when one conspirator’s minimum contacts allow for

personal jurisdiction over a co-conspirator.”     Charles Schwab

Corp. v. Bank of America Corp., 

 (2d Cir. 2018).

Plaintiffs satisfy due process if “(1) a conspiracy existed; (2)

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the defendant participated in the conspiracy; and (3) a co-

conspirator’s overt acts in furtherance of the conspiracy had

sufficient contacts with a state to subject that co-conspirator

to jurisdiction in that state.”    

.

     We hold that conspiracy jurisdiction satisfies due process

principles when Plaintiffs plead, or upon challenge show, the

defendant’s knowledge or awareness of a co-conspirator’s acts

within the jurisdiction.   EIG Energy Fund XIV, L.P. v. Petróleo

Brasileiro S.A., 

 (D.D.C. 2017), aff’d,

 (D.C. Cir. 2018).

     We endorse EIG’s approach.    To establish conspiracy

jurisdiction, a plaintiff must plead with particularity, or upon

challenge show, the conspiracy as well as the overt acts within

the forum taken in furtherance of the conspiracy.      

   At a

minimum, a plaintiff must show that the defendant knew their co-

conspirator was carrying out acts in furtherance of the

conspiracy in the forum.   Id. at 91.

     Because of its defendant-centered focus, we believe a

pleading and proof standard that requires the defendant’s

knowledge of a co-conspirator’s overt acts in the forum state

squares with precedent.    If a plaintiff shows that the defendant

knew a co-conspirator was carrying out acts in furtherance of

the conspiracy in the forum, then conspiracy jurisdiction

satisfies federal due process.    Thus, we adopt conspiracy

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jurisdiction with a knowledge requirement.     A plaintiff must:

(1) allege that the defendant knew of the co-conspirator’s acts

in the forum; and (2) plead with particularity, or upon

challenge show, the conspiracy as well as the overt acts within

the forum taken in furtherance of the conspiracy.

                                  D.

     We hold that Hawaiʻi courts have jurisdiction to hear cases

involving out-of-state defendants engaged in conspiracies that

directly target our state.

     Conspiracy jurisdiction allows a Hawaiʻi plaintiff to sue a

conspiring, but far flung, defendant here.     It keeps our court

doors open to those who allege international, national, and

other conspiracies directed at Hawaiʻi.    It aligns with our

state’s spirit of access to justice.     Hawaiʻi courts should not

shut to plaintiffs who properly allege a conspiracy where at

least one defendant took substantial action in our state and the

other defendants knew about it.

     Sometimes, conspiracy jurisdiction may be the only way to

establish jurisdiction over out-of-state defendants engaged in

widespread conspiracies targeting a particular state.

     Courts have invoked conspiracy jurisdiction to cover

fraudulent schemes and scams.    Plaintiffs have used it to sue

banks for conspiracy to price fix.     See, e.g., Schwab Short-Term

Bond Mkt. Fund v. Lloyds Banking Grp. PLC, 

, 123 (2d

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Cir. 2021), cert. denied, 

 (2022).      And in Ponzi

schemes.   See, e.g., Palumbo v. New Direction IRA, Inc., No.

6:19-cv-235 (GLS/TWD), 

, at *3 (N.D.N.Y. Mar. 27,

2020).   Multi-state loan scams, too.    See Galloway v.

Martorello, No. 3:19-cv-314, 

, at *10 (E.D. Va.

Aug. 11, 2023).   Courts have also invoked conspiracy

jurisdiction in multi-defendant tobacco litigation cases.       See,

e.g., Simon v. Philip Morris, Inc., 

, 120–21

(E.D.N.Y. 2000) (collecting cases).

     Plaintiffs can recover damages from defendants who conspire

to commit fraudulent acts in a forum state.     If a person or

company conspires to do unlawful things in Hawaiʻi and knows a

co-conspirator is taking substantial steps here to advance those

conspiratorial aims, then we believe our courts may invoke

personal jurisdiction.

                                 E.

     Though we adopt conspiracy jurisdiction, the law firms win.

The allegations against them, and the evidence offered by

Plaintiffs at the HRCP Rule 12(b)(2) motion, fail to establish

conspiracy jurisdiction.

     Conspiracy jurisdiction does not mean anything goes.

“[B]ald speculation” or “conclusionary statement[s]” do not

establish conspiracy jurisdiction.    See Naartex Consulting Corp.

v. Watt, 

 (D.C. Cir. 1983).

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     Unlike the claims against the tobacco companies and

retailers, Plaintiffs do not allege in the complaint that the

law firms had any direct contacts in Hawaiʻi.     Rather, the

complaint alleges the law firms puppet-mastered a conspiracy

from afar.

     Plaintiffs say that starting in the 1950s, the law firms

conspired with the cigarette manufacturers “to conceal the

health effects and addictive nature of smoking cigarettes” with

the “ultimate goal” of maximizing their clients’ “sale of

cigarette products throughout the United States.”      The complaint

alleges that the law firms controlled research conducted by the

manufacturers to prevent negative research from being published

about cigarettes, “misdirected” efforts to focus on other causes

of smoking-related diseases, identified and established

relationships with “friendly” scientific witnesses, and engaged

in document destruction and hiding of “negative industry

documents behind the guise of work product privilege.”

     Plaintiffs level rangy accusations.     But nowhere do they

claim the law firms knew of overt acts by co-conspirators

specifically targeting Hawaiʻi, rather than the United States as

a whole.   And the allegations, for instance the claim that the

law firms were “engaged in a fraud directed nationally and at

the State of Hawaiʻi,” are conclusory.    See American Land

Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V., 710

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F.2d 1449, 1454 (10th Cir. 1983) (“Mere allegations of

conspiracy, without some sort of prima facie factual showing of

a conspiracy, cannot be the basis of personal jurisdiction of

co-conspirators outside the territorial limits of the court.”)

(cleaned up).

     An HRCP Rule 12(b)(2) motion to dismiss challenges a

court’s jurisdiction over a defendant.     Plaintiffs have the

burden to establish personal jurisdiction.     Unlike Rule 12(b)(1)

and 12(b)(6) motions to dismiss, the court does not have to

accept a complaint’s allegations as true.     To counter a Rule

12(b)(2) motion, Plaintiffs may present specific and relevant

evidence that connects the defendant with Hawaiʻi.     See Shaw v.

N. Am. Title Co., 76 Hawaiʻi 323, 327, 

 (1994)

(plaintiffs must make a “prima facie showing of jurisdiction

through [their] own affidavits and supporting materials”).       The

court resolves any factual variances to favor the exercise of

specific personal jurisdiction.    

     Plaintiffs opposed the law firms’ Rule 12(b)(2) motions to

dismiss.   Plaintiffs claimed that the firms had direct contacts

with Hawaiʻi.   They devised fraudulent messages that spread

through various print, radio, and broadcast media in Hawaiʻi.

Plaintiffs submitted scattered exhibits.     Some extend to the

1950s.   Few mention the law firms.    All fail to establish a

sufficient connection between the law firms and Hawaiʻi.

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     The exhibits occasionally mention the law firms.      For

instance, exhibit A lists individuals who comprised the tobacco

institute “Committee of Counsel.”     However, a document that

namedrops the law firms or their attorneys offers no connection

between the law firms and Hawaiʻi.

     Some exhibits mention Hawaiʻi.    Exhibit M is a 1980

advertisement.   The small text reads in part: “C’mon up to KOOL,

Hawaii’s #1 cigarette family. . . .     Right in step with Hawaii’s

cool taste.”




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     Plaintiffs think the KOOL ad aids them.      It shows marketing

in Hawaiʻi.   But there’s no link to the law firms.     Nothing

indicates that any law firm shaped the advertisement’s

messaging, or otherwise knew that ads like this were run in

Hawaiʻi.

     Plaintiffs also provide a few exhibits about a research

proposal at the University of Hawaiʻi looking at “a possible

heredity factor in the tobacco smoking habit.”       Some documents

include Shook meeting agendas that note the study.      Sure, Shook

paid attention to the study.    But nothing shows that Shook had

anything to do with the study, its funding, or that Shook took

any action at all directed at Hawaiʻi.

     We conclude Plaintiffs fail to establish personal

jurisdiction.   Their smattering of documents fail to show the

law firms knew of a co-conspirator’s targeted acts in the forum.

The evidence presented to parry the jurisdictional attack does

not demonstrate that the law firms conspired to direct

fraudulent messages at Hawaiʻi.

     The third circuit did not properly exercise personal

jurisdiction over the law firms.       Plaintiffs plead no facts, and

offer no evidence, to show the law firms knew a co-conspirator’s

actions expressly targeted Hawaiʻi.      See Cengiz v. Salman, No.

20-3009 (JDB), 

, at *11 (D.D.C. Dec. 6, 2022).



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Courts do not have to accept inferences from plaintiffs that are

unsupported by the facts.    Livnat v. Palestinian Auth., 

 (D.C. Cir. 2017).

     Representing a client is not enough.     Absent allegations

that a law firm operates in Hawaiʻi or that the firm knows of a

co-conspirator’s overt acts in Hawaiʻi to advance the conspiracy,

a plaintiff’s claim against a law firm is just an allegation

about “out-of-state activity by out-of-state actors.”      Page v.

Democratic Nat’l Comm., No. 20 C 671, 

, at *4

(N.D. Ill. Aug. 17, 2020).    A lawyer and client may be co-

conspirators.   See Breaking Bad: Better Call Saul (AMC

television broadcast Apr. 26, 2009).     But not here.

                                 F.

     Next, we conclude that jurisdictional discovery is

undeserved.   Plaintiffs neither ask for jurisdictional

discovery, nor dispute the law firms’ argument that it’s not

warranted.    “Jurisdictional discovery is only appropriate where

the party seeking such discovery provides some specific

indication regarding what facts additional discovery could

produce that would affect the court’s jurisdictional analysis.”

EIG Energy Fund, 

 (cleaned up); see also

Coal. for Mercury–Free Drugs v. Sebelius, 

(D.D.C. 2010), aff’d, 

 (D.C. Cir. 2012) (no



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jurisdictional discovery when plaintiffs’ request was not

“narrowly tailored” to produce relevant information).

                                 G.

     Extraordinary writs are appropriate in extraordinary

circumstances.    Exceeding jurisdiction, committing a “flagrant

and manifest abuse of discretion,” or “refus[ing] to act on a

subject properly before the court under circumstances in which

it has a legal duty to act,” are court actions and inaction that

may constitute extraordinary circumstances to issue a writ.

Kema v. Gaddis, 91 Hawaiʻi 200, 205, 

 (1999).

     A petitioner must “demonstrate[] a clear and indisputable

right to the relief requested and a lack of other means to

redress adequately the alleged wrong or to obtain the requested

action.”    Id. at 204, 

.   These conditions operate

to preserve a case’s usual progression.

     A rule 12(b)(2) motion to dismiss is not an infrequent

filing.    But it rarely results in a writ.   The clear and

indisputable right to relief and normal appellate process

requirements typically push a jurisdictional challenge outside a

writ’s ambit.    Pre-final judgment, this court has hardly ever

taken jurisdiction over a case where a party wants to writ the

trial court because it believes the court has exceeded its

jurisdiction.    Indeed, the parties only cite two early-statehood

cases covering jurisdictionally-inspired writs.      See e.g.,

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Victory Carriers, Inc. v. Hawkins, 

, 

 (1960) (explaining that “if it appears from the record

that the trial court is without jurisdiction over the person of

the defendant and relator, prohibition will lie to prevent the

court from further proceeding in the action.”); Atlas Elevator

Co. v. Presiding Judge of Cir. Ct. of First Cir., 

,

 (1966).

     Until now, this court has not considered conspiracy

jurisdiction.   Because the law firms’ petition advanced a new

and extraordinary situation, we accepted it.

     We hold that the circuit court clearly and indisputably

exercised jurisdiction beyond its authority and there were no

other means for the law firms to adequately address the alleged

wrong or to obtain dismissal.

     The firms are entitled to relief.     A contrary ruling would

subject the law firms to the very due process violations that

settled personal jurisdiction law aspires to avoid.      See Atlas,

, 

.

     Plaintiffs may still sue the law firms, just not in Hawaiʻi.

Perhaps Plaintiffs will successfully show that the law firms

“stopped being counsel and became co-conspirators” and that they

“were instrumental in carrying out the conspiracy to

misrepresent the health effects and addictive nature of smoking



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cigarettes.”   But that’s a question for a court that has

personal jurisdiction over the law firms.

                                 IV.

     The court grants the law firms’ writ of prohibition.        We

direct the Circuit Court of the Third Circuit to dismiss with

prejudice the law firms as defendants.

Geoffrey Michael                       /s/ Mark E. Recktenwald
(Edmund K. Saffery, Deirdre
                                       /s/ Sabrina S. McKenna
Marie-Iha, Thomas J. Hughes,
David M. Louie, Nicholas R.            /s/ Todd W. Eddins
Monlux, Lincoln S.T. Ashida,
                                       /s/ John M. Tonaki
Thomas Benedict on the briefs)
for petitioners                        /s/ Clarissa Y. Malinao

Phillip Holden
(Wayne Parsons, Sergio Rufo,
Alejandro Alvarez on the briefs)
for respondents Marvin Manious
and Valerie Manious

Melvyn M. Miyagi, Ross T.
Shinyama, Lisa M. Yang, Rihui
Yuan, W. Randall Bassett,
Spencer M. Diamond, Philip R.
Green
(on the briefs)
for respondent R.J. Reynolds
Tobacco Company

David M. Louie, Nicholas R.
Monlux, Lincoln S.T. Ashida
(on the briefs)
for respondent Philip Morris
USA, Inc.




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