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Survey Article


This article opened last year with a discussion of McGovern v. American Airlines, Inc. and the principle that it is the plaintiff's burden to allege and invoke federal jurisdiction. McGovern was undercut somewhat by the 1976 case of Skidmore v. Syntex Laboratories, Inc. Indeed, one dissenting judge argued that the Fifth Circuit was permitting jurisdiction even though the plaintiff had failed to make even a prima facie showing of essential jurisdictional facts. The plaintiff, a Texas citizen, brought a products-liability diversity action against one Delaware corporation and one Panamanian corporation. The plaintiff, even after substantial discovery, was unable to demonstrate that either defendant had committed any tort within Texas, an essential jurisdictional fact for the plaintiff to be able to invoke the Texas long-arm statute. The manufacturer of the product was not a party to the action. The Fifth Circuit said, nevertheless, that the district court had acted "too drastically" in dismissing the plaintiff's action without prejudice. The plaintiff should be given a reasonable opportunity for additional discovery and for amendment of the complaint to name the proper defendants, the court said. Although Skidmore reflects a jurisdictional liberality inconsistent with McGovern, the Fifth Circuit may have been reacting to what it saw as a corporate shell game. The decision may have arisen from sympathy with the plaintiff's frustration in finding which company in "the whole conglomerate of Syntex's" was really responsible for manufacturing the product.