Trimboli et al v. Xanodyne Pharmaceuticals, Inc. et al
Filing
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MEMORANDUM OPINION & ORDER: Defendant Xanodyne Pharmaceuticals, Inc.'s motion to dismiss [MDL Record No. 440, 94 in 2:11-cv-00189-DCR ] is GRANTED. And because this Court's order of dismissal is based upon a lack of jurisdiction over the moving defendant, Plaintiff Gregory Trimboli claims against Xanodyne will be DISMISSED, without prejudice. Signed by Judge Danny C. Reeves on 3/8/2012.Associated Cases: 2:11-md-02226-DCR, 2:11-cv-00189-DCR(CBD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
IN RE: DARVOCET, DARVON AND
PROPOXYPHENE PRODUCTS
LIABILITY LITIGATION
Trimboli v. Xanodyne Pharm., Inc., et al.,
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Master File No. 2: 11-md-2226-DCR
MDL Docket No. 2226
Civil Action No. 2:11-189-DCR
MEMORANDUM OPINION
AND ORDER
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Defendant Xanodyne Pharmaceuticals, Inc. (“Xanodyne”) has filed a motion to dismiss
in this action. [MDL Record No. 440] It argues that the claims asserted against it by Plaintiff
Gregory Trimboli should be dismissed pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure because personal jurisdiction is lacking. For the reasons explained below, the Court
will grant Xanodyne’s motion.
BACKGROUND
This multidistrict litigation (“MDL”) proceeding arises from injuries that the plaintiffs
or their decedents suffered as a result of ingesting propoxyphene-containing products. Gregory
Trimboli, the plaintiff in the individual action that is subject to this motion, filed suit on March
8, 2011, in the United States District Court for the Eastern District of Pennsylvania. [Civil
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Action No. 2: 11-189; Record No. 1] The Trimboli case was transferred to this Court on August
16, 2011, for consolidated pretrial proceedings. [MDL Record No. 1]
Trimboli filed his second amended complaint on October 31, 2011. [MDL Record No.
278] He alleges that his decedent, Flora Trimboli, suffered “cardiovascular injuries culminating
in her sudden death from a myocardial infarction” as a result of ingesting generic propoxyphene
products. [Id. ¶ 11] Trimboli is a resident of Shelton, Connecticut, and the decedent was a
resident of New Haven, Connecticut, at “all relevant times.” [Id. ¶¶ 7-8] In support of his choice
of venue, Trimboli does not refer to Xanodyne’s connection with Pennsylvania, instead alleging
only that “Defendants were authorized to do business within the state of Connecticut and derived
substantial revenues from products sold in Connecticut and within Plaintiff’s district.”1 [Id. ¶ 53]
On November 30, 2011, Xanodyne filed a motion to dismiss Trimboli’s second amended
complaint for lack of personal jurisdiction. [MDL Record No. 440]
ANALYSIS
Pursuant to the statute governing multidistrict litigation actions, 28 U.S.C. § 1407, the
transferee Court possesses the powers of the transferor court. Howard v. Sulzer Orthopedics,
Inc., 382 F. App’x 437, 442 (6th Cir. 2010). Thus, for present purposes, the relevant question
is whether Xanodyne is subject to personal jurisdiction in the Eastern District of Pennsylvania,
where the case was originally filed.
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The first complaint alleged that venue was proper in the Eastern District of Pennsylvania as
“Defendants, at all times relevant hereto, designed, developed, manufactured, promoted, marketed,
distributed, tested, warranted, and sold Darvon, Darvocet, and Propoxyphene in interstate commerce and in
this District.” [Case No. 2: 11-189, Record No. 1 ¶ 29] It is unclear why Trimboli changed his the allegations
in his second amended complaint to refer to Connecticut.
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The Court may exercise personal jurisdiction over Xanodyne only if such jurisdiction is
authorized by Pennsylvania law and otherwise consistent with the Due Process Clause of the
Fourteenth Amendment. Pennsylvania’s long-arm statute allows personal jurisdiction over
nonresident defendants to the “fullest extent allowed under the Constitution of the United
States.” 42 Pa. Consol. Stat. Ann. § 5322(b). Personal jurisdiction may be found to exist either
generally or specifically. General jurisdiction exists when a defendant has “continuous and
systematic” contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 416 (1984). Specific personal jurisdiction exists when the “claim arises from or
relates to conduct purposely directed at the forum state.” Marten v. Godwin, 499 F.3d 290, 296
(3d Cir. 2007).
It is well-established that the plaintiff bears the burden of establishing personal
jurisdiction. See, Inc. v. Imago Eyewear Pty., Ltd., 167 F. App’x 518, 520 (6th Cir. 2006) (citing
Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002)). A plaintiff facing
“‘a properly supported motion for dismissal’” on personal-jurisdiction grounds “‘may not stand
on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the
court has jurisdiction.’” Id. at 521 (quoting Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th
Cir. 1991)). The plaintiff can meet this burden by “‘establishing with reasonable particularity
sufficient contacts between’” the defendant and the forum state. Neogen, 282 F.3d at 887
(quoting Provident Nat’l Bank v. Calif. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.
1987)).
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In support of its motion, Xanodyne provided the affidavit of Natasha Giordano, President
and Chief Executive Officer of Xanodyne. [MDL Record No. 442] Giordano states that
Xanodyne is “a company registered to do business and organized under the laws of the state of
Delaware, with its principal place of business in the Commonwealth of Kentucky.” [Id. ¶ 3]
Trimboli failed to respond with an affidavit of his own. Instead, he opposed Xanodyne’s motion
by referring to a portion of a consolidated opposition to another defendant’s motion to dismiss
for lack of personal jurisdiction. [See Record No. 910 (incorporating by reference Section II of
the plaintiffs’ consolidated opposition to generic defendant Endo Pharmaceuticals’ motion to
dismiss [MDL Record No. 901])] However, the argument on which Trimboli relies concerns
completely different defendants and vastly different facts than those presently before the Court.
In fact, the consolidated opposition “discusses neither Pennsylvania nor Xanodyne.” [MDL
Record No. 1033, p. 2]
Rather than setting forth any facts that would establish that the District Court for the
Eastern District of Pennsylvania has general or specific jurisdiction over Xanodyne, Trimboli
requests leave to conduct discovery to “ascertain the facts bearing on whether a party is properly
subject to [personal jurisdiction].” [MDL Record No. 910, p. 1] The Court has broad discretion
in allowing jurisdictional discovery. Theunissen, 935 F.2d at 1458. However, based on
Trimboli’s complaint, as well as his response to Xanodyne’s motion, it is unclear what relevant
facts could be established by such discovery. Therefore, the Court will deny this request.
When the Court does not allow jurisdictional discovery, it must “consider the pleadings
and affidavits in the light most favorable to the plaintiff.” Serras v. First Tenn. Bank Nat’l
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Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989) (internal quotation marks omitted). In other words,
a plaintiff need only make a prima facie case that personal jurisdiction exists. Theunissen, 935
F.2d at 1458. However, Trimboli has failed to carry even this lesser burden.
To the extent that the consolidated opposition is relevant to the motion currently before
the Court, Trimboli seems to argue that the Court has general jurisdiction over Xanodyne
because it established substantial contacts in the forum state “through placement of salespersons
and realized sales revenues.” [MDL Record No. 901, p. 26] The plaintiffs’ consolidated
opposition discusses generic defendant Endo Pharmaceuticals, Inc.’s connections with the forum
states. Not one of those facts is relevant to Xanodyne’s connection with Pennsylvania. Trimboli
has failed to set forth even general — much less specific — facts that would demonstrate that
there is personal jurisdiction over Xanodyne in the Eastern District of Pennsylvania. See Imago
Eyewear, 167 F. App’x at 521. Therefore, he has not satisfied his burden to establish a “prima
facie case of personal jurisdiction.” Compuserve v. Patterson, 89 F.3d 1257, 1262 (6th Cir.
1996).
In the event that the Court finds personal jurisdiction to be lacking, Trimboli requests that
his case be transferred either to this Court or to the “Connecticut state court.” [MDL Record No.
910, p. 1] As an initial matter, a federal court cannot transfer a case to state court. See Bingham
v. Pancake, No. 5:09-CV-95, 2011 WL 1134258, at *1 (W.D. Ky. Mar. 25, 2011). Furthermore,
the Court does not have the power to transfer a case to itself in the manner requested by Trimboli
because “self-assignment is beyond the scope of the transferee court’s authority.” Lexecon Inc.
v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 39-40 (1998) (holding that the plain
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language of 28 U.S.C. § 1407(f) imposes a responsibility to remand, which “bars recognizing
any self-assignment power in a transferee court”). Therefore, Trimboli’s transfer request will
be denied.
CONCLUSION
Trimboli has failed to meet his burden of establishing a prima facie case of personal
jurisdiction over Xanodyne in the Eastern District of Pennsylvania. Xanodyne, therefore, is
entitled to dismissal under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Accordingly,
it is hereby
ORDERED that Defendant Xanodyne Pharmaceuticals, Inc.’s motion to dismiss [MDL
Record No. 440] is GRANTED. And because this Court’s order of dismissal is based upon a
lack of jurisdiction over the moving defendant, Plaintiff Gregory Trimboli claims against
Xanodyne will be DISMISSED, without prejudice.
This 8th day of March, 2012.
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