Jurisdictional Discovery First: Kentucky Supreme Court Requires “Ample Opportunity” Before Dismissing for Lack of Personal Jurisdiction; Indirect “Substantial Revenue” Satisfies the Long-Arm Statute

Introduction

In Robert Braun v. Bearman Industries, LLC, the Supreme Court of Kentucky reversed in part and remanded a jurisdictional dismissal entered by the Fayette Circuit Court and affirmed by the Court of Appeals. The case arises from a products-liability action alleging that a Bearman-manufactured pistol discharged unexpectedly in Kentucky, injuring the plaintiff, Robert Braun. The pivotal issues were (1) whether Bearman, a Utah-based firearm manufacturer selling through out-of-state distributors, fell within Kentucky’s long-arm statute; and (2) whether asserting specific personal jurisdiction would comport with federal due process, including whether Bearman “purposefully availed” itself of the Kentucky market under the “stream-of-commerce plus” framework.

The Court held that the record—despite limited discovery—established that Bearman “derived substantial revenue” from goods sold in Kentucky and that Braun’s claims “arise from” those sales, bringing Bearman within the long-arm statute in effect at the time. Crucially, the Court concluded the trial court ruled prematurely on due process because Bearman’s discovery noncompliance denied Braun an “ample opportunity” to conduct and complete jurisdictional discovery. The Court therefore remanded for targeted jurisdictional discovery before any final ruling on Bearman’s personal-jurisdiction challenge.

Summary of the Opinion

The Court applies the two-step framework from Caesars Riverboat Casino, LLC v. Beach (336 S.W.3d 51 (Ky. 2011)) that governed under the pre-2024 version of KRS 454.210:
1. Does the claim fit the long-arm statute?
2. If yes, would exercising jurisdiction comport with due process?
Long-arm satisfied: The Court agrees with the Court of Appeals that Bearman “derived substantial revenue” from sales of its firearms in Kentucky and that Braun’s injury “arises from” those Kentucky sales under KRS 454.210(2)(a)(4) and (5) (2019–2024 version).
Due process unresolved (premature): The trial court’s dismissal on due process grounds—without affording Braun a fair chance to complete jurisdictional discovery—was premature, particularly given Bearman’s failure to timely respond to discovery.
Remand: The case is remanded with instructions to afford Braun an ample opportunity to conduct jurisdictional discovery targeted to specific personal jurisdiction before the trial court rules on Bearman’s motion to dismiss.

Detailed Analysis

Statutory Framework and Its Evolution

At the time Braun sued, Kentucky’s long-arm statute (KRS 454.210(2)(a) (2019–2024)) listed specific hooks for asserting jurisdiction over out-of-state defendants. Two are central here:

Subsection (4): Tortious injury in Kentucky by an act or omission outside Kentucky where the defendant “derives substantial revenue” from goods used or consumed in Kentucky and the claim “arises from” that conduct.
Subsection (5): Injury in Kentucky by breach of warranty made outside Kentucky where the seller knew the goods would affect a Kentucky person, and the seller also “derives substantial revenue” from goods used or consumed in Kentucky, with the claim arising from that conduct.

In 2024, the General Assembly amended the statute to make it coextensive with constitutional limits (KRS 454.210(2) (eff. July 15, 2024)), effectively collapsing the two-step Caesars Riverboat inquiry into a pure due-process question for new cases. This case applies the earlier version because of the timing of events, but the Court’s due-process analysis and its “jurisdictional discovery first” rule are fully relevant under the current statute as well.

Precedents Cited and Their Role

Hinners v. Robey, 336 S.W.3d 891 (Ky. 2011): Establishes de novo review for personal-jurisdiction questions and permits plaintiffs to meet their burden with a prima facie showing when no evidentiary hearing is held.
Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51 (Ky. 2011): Provides the two-step analysis—first, fit within the long-arm statute; second, due process. Also defines “arises from” as requiring a reasonable and direct nexus between the wrongful acts and the long-arm predicate conduct.
Miller v. AXA Winterthur Ins. Co., 694 F.3d 675 (6th Cir. 2012): Recites the difference between general and specific jurisdiction. The Court relies on this framework to focus its analysis on specific jurisdiction.
Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir. 1968): Supplies the three-part specific-jurisdiction test (purposeful availment; arises from in-state activities or consequences; reasonableness), incorporated in Kentucky in Hinners.
Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102 (1987): The plurality’s “stream-of-commerce plus” standard—mere awareness that products will enter the forum via distributors does not suffice; purposeful availment requires plus factors (e.g., advertising in the forum, designing for the forum market, establishing customer service channels in the forum, or using a distributor that agreed to serve as the forum-state sales agent).
Parker v. Winwood, 938 F.3d 833 (6th Cir. 2019): Confirms the Sixth Circuit’s adherence to Asahi’s “stream-of-commerce plus” requirement. Kentucky looks to this articulation in assessing manufacturers using third-party distribution channels.
Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010) and Pendleton Bros. Vending, Inc. v. Commonwealth, 758 S.W.2d 24 (Ky. 1988): Establish that dispositive rulings are proper only after the nonmovant has had an ample opportunity to complete discovery. The Court carries this principle into the personal-jurisdiction context.
Fortney v. Elliott’s Adm’r, 273 S.W.2d 51 (Ky. 1954): Appellate courts decide cases on the record as it existed in the trial court; new evidence introduced on appeal will not be considered—reinforcing the necessity of jurisdictional discovery at the trial level.
CR 12.02 and related commentary: Abolishes the former distinction between special and general appearances. Responding to merits or participating in discovery does not waive a personal-jurisdiction objection, removing the procedural trap and encouraging cooperation with jurisdictional discovery.

Legal Reasoning

1) Long-arm satisfied: “Substantial revenue” can be indirect, and Braun’s claim “arises from” Kentucky sales

The Court accepted publicly available evidence showing widespread availability of Bearman firearms at Kentucky retailers—at least 60 units on a single day—and reasoned that such sales generate revenue that is neither “immaterial” nor “insignificant.” Importantly, the Court emphasized that “substantial revenue” under KRS 454.210 can be satisfied by indirect revenue from distributor and dealer sales; the statute does not require direct sales into Kentucky.

On the “arises from” element, the Court applied Caesars Riverboat’s “reasonable and direct nexus” standard and found it readily met: Braun purchased the Bearman firearm in Kentucky, and his injury flowed from that purchase. Thus, under the 2019–2024 statute, Bearman fit within the long-arm under KRS 454.210(2)(a)(4) and (5).

2) Due process (specific jurisdiction): The “stream-of-commerce plus” question requires discovery

The central due-process question is whether Bearman “purposefully availed” itself of Kentucky. Under Asahi and Parker, mere awareness that a distributor may send products into Kentucky is not enough. There must be “plus” factors evidencing an intent or purpose to serve the Kentucky market, such as:

Advertising in Kentucky;
Designing the product for the Kentucky market;
Establishing channels to provide regular advice to Kentucky customers;
Using a distributor that agreed to serve as a sales agent in Kentucky.

The Court recognized that evidence of such relationships and conduct resides largely, if not exclusively, with Bearman (e.g., distributor agreements, marketing plans, sales reporting, customer-support structures). Because Bearman failed to timely respond to discovery, Braun could not test Bearman’s affidavit or develop facts pertinent to purposeful availment. Applying Blankenship, the Court held the trial court ruled prematurely by dismissing on due process without allowing an “ample opportunity” for jurisdictional discovery.

3) The “ample opportunity” rule for jurisdictional discovery

The Court transported the familiar summary-judgment discipline into the personal-jurisdiction context: when dispositive relief hinges on facts peculiarly in the movant’s possession, the nonmovant must be afforded a meaningful chance to obtain them. Here:

Braun served discovery in December 2021.
Bearman moved to dismiss in February 2022 and did not respond to core interrogatories and requests for production for over a year, producing only after a motion to compel and after the court’s deadline passed (responses in January 2023).
The trial court dismissed Bearman in March 2023 without an evidentiary hearing.

Given Bearman’s noncompliance and the timing, Braun lacked an ample opportunity to pursue and complete jurisdictional discovery. The Court remanded for focused discovery and a renewed ruling afterwards.

What Counts as “Purposeful Availment” in Stream-of-Commerce Cases

The Court reaffirmed a “stream-of-commerce plus” paradigm. Evidence tending to show “plus” includes, for example:

Distributor agreements expressly granting or requiring distribution in Kentucky;
Market-specific efforts (advertising campaigns directed to Kentucky; geotargeted online marketing to Kentucky IP addresses; Kentucky dealer locator tools; Kentucky-specific promotions or rebate programs);
Sales and service infrastructure oriented to Kentucky (dedicated sales representatives for Kentucky; Kentucky training or dealer certification; Kentucky service or warranty channels; field service visits in Kentucky);
Product adaptations or compliance measures for Kentucky (e.g., features tailored to Kentucky regulations, labeling tailored to Kentucky consumers);
Attendance at Kentucky trade events or dealer shows; direct shipments into Kentucky; or sales quotas keyed to Kentucky performance.

By contrast, generalized knowledge that a national or regional distributor might place products in Kentucky ordinarily does not establish purposeful availment without more.

Jurisdictional Discovery on Remand: What It Should Cover

The opinion strongly signals the scope of appropriate discovery:

Distributor relationships and agreements (e.g., contracts with RSR Group and others) addressing territories, sales goals, and obligations with respect to Kentucky;
Reports Bearman received showing Kentucky sales volumes, rankings, or market share; internal dashboards tracking Kentucky performance; communications analyzing Kentucky as a target market;
Marketing and web analytics: geotargeted ads, Kentucky-specific campaigns, participation in Kentucky trade shows, dealer marketing kits distributed to Kentucky retailers, presence on Kentucky retailer websites coordinated by Bearman;
Customer service and warranty systems serving Kentucky consumers (dedicated channels, repair centers, RA records that identify Kentucky purchasers or retailers);
Product design, labeling, or compliance steps tailored to Kentucky;
Shipping and logistics records evidencing shipments directed into Kentucky (even if initiated via distributors);
Internal policies or communications reflecting an intent to cultivate or expand the Kentucky market.

The trial court may cabin this discovery to jurisdictional issues, set deadlines, and permit focused depositions (e.g., of Bearman’s member-manager and distributor representatives) to avoid undue burden while ensuring completeness.

Impact and Practical Implications

For plaintiffs

Publicly available retailer listings can help establish “substantial revenue” under the pre-2024 statute; indirect revenue from distributor sales counts.
Do not rely solely on defendants’ affidavits. Promptly serve targeted jurisdictional discovery and, if necessary, move to compel. This opinion assures you an “ample opportunity” to complete that discovery before dismissal.
Preserve the record in the trial court; the appellate court will not consider extra-record material (Fortney).

For defendants

CR 12.02 allows you to engage in discovery without waiving a jurisdictional objection. Cooperate. Refusing discovery invites reversal and remand.
Support affidavits with documentary evidence (contracts, policy manuals, marketing plans) or be prepared for discovery testing those assertions.

For trial courts

When personal jurisdiction turns on facts largely in the defendant’s possession, provide a structured, time-limited period for jurisdictional discovery before ruling.
If material facts remain disputed after discovery, consider an evidentiary hearing. At a minimum, decide the motion against a fully developed jurisdictional record.

Under the amended (2024) long-arm statute

Because KRS 454.210(2) is now coextensive with due process, the “long-arm category” step drops out for new cases. Yet this opinion’s two major holdings remain influential:

Purposeful availment in “stream-of-commerce” cases requires “plus” factors (Asahi/Parker) and typically warrants jurisdictional discovery.
Dismissals for lack of personal jurisdiction should not occur until the nonmovant has had an ample opportunity to complete jurisdictional discovery, especially where the movant controls the key evidence.

Unresolved Questions and Future Litigation

How much is “substantial revenue” in close cases? The Court avoided a numerical threshold but embraced a commonsense, qualitative approach rooted in “considerable” versus “immaterial” revenue.
What “plus” facts will suffice? The opinion sketches categories but leaves line-drawing to trial courts on fuller records. Distributor agreements that expressly include Kentucky remain particularly probative.
Role of “relates to” versus “arises from”: Kentucky’s Caesars standard uses a “reasonable and direct nexus” test. Although the U.S. Supreme Court has discussed “arise out of or relate to,” Kentucky’s analysis here remains grounded in Caesars; litigants should develop either nexus under controlling Kentucky and Sixth Circuit authorities.

Complex Concepts Simplified

Personal jurisdiction: A court’s power to bind a defendant. “General” jurisdiction allows any claim; “specific” jurisdiction allows only claims that arise out of or relate to the defendant’s contacts with the forum.
Long-arm statute: A state law defining which out-of-state defendants can be sued in its courts. Kentucky’s pre-2024 statute listed enumerated categories; since July 15, 2024, it reaches to constitutional limits.
Substantial revenue: Not mathematically defined; means revenue that is “considerable” rather than trivial. Indirect revenue via distributors counts.
Arises from: There must be a reasonable, direct nexus between the defendant’s forum-directed conduct and the plaintiff’s claim.
Stream-of-commerce plus: Shipping a product into a national distribution chain, knowing it may reach the forum, is not enough. There must be additional conduct showing an intent to serve the forum’s market.
Purposeful availment: The defendant’s deliberate engagement with the forum, such that it could reasonably anticipate being haled into court there.
Jurisdictional discovery: Targeted discovery limited to facts bearing on personal jurisdiction (e.g., distributor agreements, sales and marketing data, customer service channels).
Ample opportunity: A meaningful chance to obtain and test key jurisdictional facts before the court rules—especially when those facts are within the movant’s exclusive control.

Conclusion

Braun v. Bearman Industries clarifies two important points in Kentucky practice. First, under the pre-2024 long-arm statute, “substantial revenue” may be shown through indirect sales by distributors to Kentucky retailers, and a plaintiff’s purchase and injury in Kentucky satisfies the “arises from” nexus. Second—and most significant as a durable procedural precedent—trial courts must ensure plaintiffs have an ample opportunity to conduct and complete jurisdictional discovery before dismissing for lack of personal jurisdiction, particularly where the defendant controls the critical facts and has delayed or resisted discovery.

On remand, the trial court must permit focused jurisdictional discovery on purposeful availment consistent with Asahi’s “stream-of-commerce plus” framework and the Sixth Circuit’s application in Parker. The decision thus sets a practical roadmap: develop the record first; decide personal jurisdiction second. Under the amended KRS 454.210, that sequencing will matter even more, because the entire inquiry now turns on due process—and due process, in turn, depends on facts that parties must be allowed to discover.

The opinion’s bottom line is procedural but powerful: dismissal for lack of personal jurisdiction should be evidence-based. Where the movant has withheld or delayed the very evidence that would resolve the due-process question, dismissal is premature.