McLevis v. Cuckler, MD et al
Filing
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OPINION AND ORDER: GRANTING 14 Motion to Dismiss. Defendants Dr. John Cuckler and Alabama Medical Consultants Inc are DISMISSED. Signed by Judge Robert L Miller, Jr on 5/3/18. (jld)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RONALD MCLEVIS,
Plaintiff
vs.
JOHN CUCKLER, M.D., et al.,
Defendants
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Case No. 3:17-CV-957 RLM-MGG
OPINION AND ORDER
Ronald McLevis filed suit against Dr. John Cuckler, his company, Alabama
Medical Consultants, Inc. (AMC), and the Biomet defendants, alleging that Dr.
Cuckler and AMC: (1) are citizens of Florida; (2) had a “contractual relationship”
with Biomet, pursuant to which they designed and promoted the M2a; and (3)
“consented to being sued in this MDL court for claims of injury related to the
products at issue in this Complaint.” (Cmplt. ¶¶ 3-6 and 57-76) Although Mr.
McLevis filed his case directly in this court, pursuant to the February 15, 2013
and March 14, 2016 Case Management Orders, he alleges that venue is proper in
the District of Minnesota “because a substantial part of the events or omissions
giving rise to Plaintiff’s claim occurred in [that] district.” (Cmplt. ¶ 10). Dr. Cuckler
and AMC moved to dismiss the suit for lack of personal jurisdiction, and
submitted an affidavit in support, in which Dr. Cuckler attests that he and AMC
were independent contractors (not employees, affiliates or subsidiaries of Biomet),
that they never consented to jurisdiction outside of Indiana or Florida regarding
the plaintiff’s claims, and that they haven’t had sufficient contacts with Minnesota
to support the exercise of personal jurisdiction and to satisfy due process. [Doc.
No. 15-1]. The motion to dismiss is well-taken.
When the issue of personal jurisdiction is raised in a motion to dismiss, the
plaintiff bears the burden of establishing personal jurisdiction over each of the
defendants. Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc.,
751 F.3d 796, 799 (7th Cir. 2014); Tamburo v. Dworkin, 601 F.3d 693, 700 (7th
Cir. 2010); Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773,
782 (7th Cir. 2003). A court can receive and weigh affidavits, exhibits and other
evidence in deciding whether it has personal jurisdiction, Purdue Research
Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d at 782; Nelson v. Park Indus.,
Inc., 717 F.2d 1120, 1123 n.7 (7th Cir. 1983). “[O]nce the defendant has
submitted affidavits or other evidence in opposition to the exercise of jurisdiction,
the plaintiff must go beyond the pleadings and submit affirmative evidence
supporting the exercise of jurisdiction.” Purdue Research Foundation v. SanofiSynthelabo, S.A., 338 F.3d at 783.
The notice of electronic filing and certificate of service show that plaintiff’s
counsel was served with a copy of the motion to dismiss and supporting
documents on April 9, 2018. Under Local Rule 7-1, Mr. McLevis had until April
23 to file his response and provide evidence supporting the exercise of personal
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jurisdiction over the defendants, or to seek an extension of the filing deadline. He
did neither.
Accordingly, the motion to dismiss the claims against Dr. John Cuckler and
Alabama Medical Consultants, Inc. [Doc. No. 14] is GRANTED.
SO ORDERED.
ENTERED:
May 3, 2018
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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