Smitherman v. U.S. Food and Drug Administration/Center for Food Safety and Applied Nutrition et al (MAG+)

Filing 47

REPORT AND RECOMMENDATIONS of Mag Judge that the Motions to dismiss ( 28 , 31 , 33 , & 38 ) be granted; Plaintiff's Motions to Strike (doc. 40 & 41 be denied; and that this case be dismissed; Objections to R&R due by 6/22/2009. Signed by Honorable Wallace Capel, Jr on 6/9/09. (vma, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION V IR G IN IA A. SMITHERMAN, P l a in tif f v. U .S . FOOD AND DRUG A D M IN IS T R A T IO N CENTER FOR F O O D SAFETY AND APPLIED N U T R IT IO N , et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 2:08-cv-959-MEF

R E C O M M E N D A T IO N OF THE MAGISTRATE JUDGE
O n 5 December 2009, Plaintiff filed a Complaint (Doc. #1) against Defendants a lle g in g wrongful death. On 5 January 2009, the District Court granted Defendants' motion to extend the time to file an answer and, pursuant to 28 USC 636(b)(1), referred the matter to the undersigned Magistrate Judge for all pretrial proceedings and entry of any orders or re c o m m e n d a tio n s as may be appropriate. (Doc. #13). Rather than file an answer, Defendants e a c h filed Motions to Dismiss. See (Docs. #28, 31, 33, & 38).1 In response, Plaintiff filed M o tio n s to Strike the Motions to Dismiss.2 (Docs. #40 & 41). F o r the reasons that follow, the undersigned Magistrate Judge RECOMMENDS that

Government Defendants U.S. Food and Drug Administration/Center for Food Safety and Applied Nutrition and Centers for Disease Control and Prevention filed a joint Motion to Dismiss. (Doc. #38). Plaintiff did not provide a proper basis to strike Defendants' Motions. The Court has construed Plaintiff's Motions to Strike as Responses to the Motions to Dismiss.
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th e Motions to Dismiss (Docs. #28, 31, 33, & 38) be GRANTED; Plaintiff's Motions to S trik e (Doc. #40 & 41) be DENIED; and that this case be DISMISSED. I. BACKGROUND T h is case centers around the tragic death of Plaintiff's daughter, on 28 October 2007, f ro m Metastatic Osteosarcoma. Plaintiff files this wrongful death suit against two agencies o f the federal government, the U.S. Food and Drug Administration/Center for Food Safety a n d Applied Nutrition (FDA), Centers for Disease Control and Prevention (CDC),3 and three n o t-f o r-p ro f it associations,4 the American Dental Association (ADA), the American A ca d em y of Pediatrics (AAP), and the American Academy of Pediatric Dentistry (AAPD). P l a in tif f alleges that Defendants violated "Federal Food & Drug Laws and their Mission Statem en ts " when they "mislead health-care professionals and the public by insisting without p ro o f that `over-exposure' to Fluoride will not put children's health at risk" and acted n e g lig e n tly when they "allowed, recommended and/or promoted the use of an `illegal' p re sc rip tio n drug (Dietary Fluoride Supplements) for children living in nonfluoridated c o m m u n itie s." See Complaint (Doc. #1 at 1-2). All Defendants filed motions to dismiss. See (Docs. #28, 31, 33, & 38). The A sso ciatio n s moved to dismiss on several grounds, including challenging this Court's e x e rc is e of personal jurisdiction. See (Docs. #28, 31, &33). The Agencies moved to dismiss

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For the purposes of this suit, these defendants shall be known jointly as "the Agencies."

For the purposes of this suit, these defendants shall be known collectively as "the Associations."

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b a s e d on sovereign immunity. See (Doc. #38) First, the Court will address collectively the M o tio n s to Dismiss filed by the Associations. Second, the Court will address the Motion f ile d by the Agencies. II. D IS C U S S IO N A . The Associations T h e Associations challenge this Court's exercise of personal jurisdiction. "A plaintiff s e e k in g the exercise of personal jurisdiction over a nonresident defendant bears the initial b u rd e n of alleging in the complaint sufficient facts to make out a prima facie case of ju risd ictio n . Where, as here, the defendant challenges jurisdiction by submitting affidavit e v id e n c e in support of its position, the burden traditionally shifts back to the plaintiff to p ro d u c e evidence supporting jurisdiction." United Technologies Corp. v. Mazer, 556 F.3d 1 2 6 0 , 1274 (11th Cir. 2009) (internal citations omitted). P la in tif f asserts this Court may exercise subject matter jurisdiction over the A s s o c ia tio n s through diversity.5 "A federal court sitting in diversity undertakes a two-step in q u i ry in determining whether personal jurisdiction exists: the exercise of jurisdiction must ( 1 ) be appropriate under the state long-arm statute and (2) not violate the Due Process Clause

Plaintiff invokes the jurisdiction of this Court by alleging both federal question claims and diversity. Liberally construing Plaintiff's complaint, it is clear that the federal question claims apply to the Agencies and diversity is invoked against the Associations. Accordingly, Rule 4(k)(2)'s allowance of "a federal district court to exercise personal jurisdiction over a foreign defendant when (1) the claim at issue arises under federal law, and (2) exercising jurisdiction is consistent with the Constitution and laws of the United States," Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1218 (11th Cir. 2009), is not applicable here.

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o f the Fourteenth Amendment to the United States Constitution." Id. at 1274 (citing Horizon A g g r e s s iv e Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005)). Alabama's long-arm statute extends the personal jurisdiction of Alabama courts to the lim its of due process under the federal constitution and the Alabama constitution. Sieber v. C a m p b e ll, 810 So. 2d 641, 645 (Ala. 2001). Thus, the inquiry in step one is the same as in s te p two: whether the assertion of personal jurisdiction comports with the Due Process re q u ire m en ts of federal law. T h e re are two types of personal jurisdiction, general and specific. Plaintiff has a ss e rte d neither, but the Court will address both. (1 ) S p e c ific Jurisdiction

"Specific jurisdiction arises out of a party's activities in the forum that are related to th e cause of action alleged in the complaint." Consolidated Development Corp. v. Sherritt, In c ., 216 F.3d 1286, 1291 (11th Cir. 2000). "[S]pecific jurisdiction is proper where (i) the d e f en d a n t's contacts with the forum state are related or give rise to the plaintiff's cause of a c tio n , (ii) the contacts involve some act by which the defendant purposefully avails itself o f the privilege of conducting activities within the forum, and (iii) the defendant's contacts w ith the forum are such that the defendant should reasonably anticipate being haled into c o u rt there." Matthews v. Brookstone Stores, Inc., 469 F. Supp. 2d 1056, 1060 (S.D. Ala. 2 0 0 7 ). T h e Associations generally make the same arguments to support their assertion that

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P la in tif f cannot establish specific jurisdiction. The Associations point out that Plaintiff has fa iled to show any interaction between her daughter and the Associations, or the medical care p ro v id e r who prescribed the fluoride supplements. The Associations also argue Plaintiff has n o t shown that her daughter or the health care provider relied on, or were even aware of, any p u b lic pronouncements regarding fluoride made by the Associations. A very similar issue was decided by the district court in Murphy v. Aventis Pasteur, In c ., 270 F. Supp. 2d 1368 (N.D. Ga. 2003). In Murphy, the plaintiff sued the ADA (and o th e r defendants), "alleging that her child suffer[ed] from the effects of heavy metal p o is o n in g , specifically mercury poisoning, due to the conduct of the defendants." Id. at 1 3 7 1 . The district court in Georgia held that the ADA was not subject to the personal s p e c if ic jurisdiction of the court,6 stating: In light of the above standards, the court finds that the ADA is not subject to th e personal jurisdiction of this court. The plaintiff does not sufficiently allege th a t the ADA either manufactured or sold the dental amalgams she allegedly re c eiv e d . Neither has she alleged that her treating dentist was a member of the A D A or was in any manner influenced by the ADA at the time the amalgams w e re installed. Upon careful review, it does not appear that the ADA is alleged to have directly participated in any manner in the chain of events that led to the d e n ta l amalgams being installed in the plaintiff. Accordingly, the court finds th a t the ADA is not subject to specific jurisdiction. Id . at 1379. T h is Court finds the holding of the Murphy court persuasive. Here, Plaintiff does not s u f f ic ie n tly allege that the Associations either manufactured or sold flouride, or that her

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Georgia's long-arm statute is identical to that of Alabama's.

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d a u g h te r's treating dentist or physician was a member of any of the Associations, or in any m a n n e r influenced by the Associations at the time any fluoride was taken. Upon careful re v iew , it does not appear that the Associations are alleged to have directly participated in an y manner in the chain of events that led to the tragic death of Plaintiff's daughter. A c c o rd in g ly, the Court finds that Plaintiff has failed to establish any of the three elements re q u ire d for the exercise of specific jurisdiction. (2) G e n e ra l Jurisdiction

General jurisdiction arises from the defendant's contacts with the forum that are not d ire c tly related to the cause of action being litigated. Meier v. Sun Int'l Hotels, Ltd., 288 F .3 d 1264, 1269 (11th Cir. 2002). "The due process requirements for general personal ju ris d ic tio n are more stringent than for specific personal jurisdiction, and require a showing o f continuous and systematic general business contacts between the defendant and the forum s ta te ." Consolidated Development Corp. 216 F.3d at 1292. A g a in , the Associations' arguments are nearly identical on this issue. A ss o c iatio n s allege: (1) they are not-for-profit corporations organized under the laws of another sta te and have never been incorporated in Alabama; (2)they have no offices, employees, mailing addresses, bank accounts, telephone listin g s, or telephone service in Alabama; (3) they do not have an agent for service of process in Alabama; (4 ) they neither own nor lease any real or personal property in Alabama; (5 ) they do not accredit dental schools in Alabama; (6) they are voluntary organizations; (7) they cannot grant, revoke or suspend the licenses of any Alabama professionals; (8 ) they do not own or operate dental or medical clinics and do not examine or treat 6 The

d e n ta l or medical patients in Alabama or elsewhere. The Associations do not, and c a n n o t, prescribe any pharmaceutical products, including any fluoride supplement p ro d u c ts, in Alabama or elsewhere; (9) they do not promulgate or issue any policies, procedures or positions focused on A lab a m a or Alabama dentists; (10) No dentist, whether in Alabama or elsewhere, has ever been required to p re sc rib e , recommend, or distribute any fluoride supplement product as a condition f o r membership in the Associations; (11) they do not contract to supply services or goods in Alabama, and do not derive sig n if ica n t revenue from goods sold or services rendered in Alabama; (12) they do not manufacture, package, sell, recommend, market, advertise, promote, d is trib u te , or place into the stream of commerce any fluoride supplements; and (13) they do not specifically direct business solicitation efforts at Alabama. S e e Defendants' Briefs (Docs. #29 at 6-7, #32 at 2-3, #34 at 6). T h e Murphy court also addressed this issue, stating: T h e ADA does not have sufficient continuous and systematic contacts with G e o rg ia to support a finding that the ADA is subject to general jurisdiction in th is forum. The ADA is a voluntary association whose activities are centered a ro u n d Chicago, Illinois. The ADA's contacts with Georgia are generally in itia ted by member citizens of Georgia. The ADA is not licenced [sic] to tra n sa c t business in Georgia and does not have a designated agent for service o f process in Georgia. It appears that the ADA has taken careful steps not to s u b je c t itself to the jurisdiction of foreign jurisdictions. The tri-partite dental a ss o c iatio n structure allows the ADA to avoid employing citizens of Georgia w h ile deriving significant financial benefit from citizens of Georgia. N e v e rth e le ss , the contacts revealed by the record do not support a finding that th e ADA is subject to general jurisdiction in Georgia. Murphy, 270 F. Supp. 2d at 1379. A g a in , this Court agrees with the reasoning and findings of the Murphy court. Thus, a n d for the same reasons stated in Murphy. This Court does not find that the Associations a re subject to general jurisdiction in Alabama. Because the Associations objected to the personal jurisdiction of this Court and 7

s u b m itte d credible evidence in support, the burden shifted to Plaintiff to produce evidence s u p p o rtin g jurisdiction. United Technologies Corp., 556 F.3d at 1274. Plaintiff has failed to produce any evidence in support of personal jurisdiction over the Associations. A c c o rd in g ly, the Court finds that it lacks jurisdiction over the Associations and finds that the M o tio n s to Dismiss (Docs. #28, 31, & 33) are due to be granted and Plaintiff's Motion to S trik e (Doc. #40) is due to be denied.7 B. T h e Agencies

T h e FDA and CDC claim, as agencies of the United States government, sovereign im m u n ity from suit. See Asociacion De Empleados Del Area Canalera (ASEDAC) v. P a n a m a Canal Commission, 453 F.3d 1309, 1315 (11th Cir. 2006) (explaining that the " U n ited States' immunity from suit extends to its agencies"). Because sovereign immunity is jurisdictional, and there has been no waiver of immunity, the Agencies argue this Court la c k s subject-matter jurisdiction to hear this case. The Agencies argue, in the alternative, that if this Court were to interpret Plaintiff's claims as a suit against the United States under the F e d e ra l Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2671-2680, then this case is due to be dismissed for failure to exhaust administrative remedies. See 28 U.S.C. § 2675 (a). P lain tiff replied to the Agencies' arguments in a Motion to Strike. (Doc. #41). First, P la in tif f appears to argue that she did in fact intend to sue the United States, although she a d m its that the United States was not actually named in the Complaint. Second, Plaintiff
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Because the Court finds it lacks jurisdiction over these Defendants, it need not address the other arguments for dismissal raised in Defendants' briefs.

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s ta te s that the time for her to file an administrative claim pursuant to 28 U.S.C. § 2401(b) has n o t yet run. Finally, it appears Plaintiff requests that, should the Court deem is necessary for h e r to file an administrative claim prior to proceeding with this suit, the Court stay this action p e n d in g the resolution of her administrative claim. See (Doc. #40). P la in tif f 's claims against the agencies are barred pursuant to the doctrine of sovereign im m u n ity. Panama Canal Commission, 453 F.3d at 1315. To the extent the Court construes th i s action as against the United States under the FTCA, it is due to be dismissed because e ith e r "[a] FTCA claim against a federal agency or employee as opposed to the United States its e lf must be dismissed for want of jurisdiction," id, or because Plaintiff has failed to e x h a u s t her administrative remedies. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1 9 9 4 ) ("A federal court may not exercise jurisdiction over a suit under the FTCA unless the claim an t first files an administrative claim with the appropriate agency."). F u rth er, because the exhaustion requirement is a prerequisite component to the Court o b t a in i n g subject-matter jurisdiction, the Court cannot hold Plaintiff's case in abeyance p e n d in g the resolution of a future administrative action. See Turner ex rel. Turner v. United S ta te s, 514 F.3d 1194, 1202 n.5 (11th Cir. 2008) ("[J]jurisdiction under FTCA `must exist a t the time the complaint is filed,' and a court may not `stay or hold in abeyance.'") (citing G r e g o r y v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981)). Accordingly, the Agencies' Motion to Dismiss (Doc. #38) for lack of jurisdiction is d u e to be granted, and Plaintiff's Motion to Strike (Doc. #41) is due to be denied.

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III.

C O N C L U SIO N F o r the reasons discussed above, it is the RECOMMENDATION of the undersigned

M a g is tra t e Judge that the Motions to Dismiss (Docs. #28, 31, 33, & 38) be GRANTED; P la in tif f 's Motions to Strike (Doc. #40 & 41) be DENIED; and that this case be D IS M IS S E D . It is further ORDERED that the parties are DIRECTED to file any objections to the said R e c o m m e n d a t io n on or before 22 June 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1 9 8 1 ).

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D O N E this 9th day of June, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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