Shannon v. Combe Incorporated et al

Filing 33

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Greg N. Stivers on 2/5/2024. Defendants' Motion to Dismiss DN 18 is GRANTED, and Plaintiff's claims against Defendants Combe Laboratories LLC (incorrectly named as Combe Laboratories Inc.) and Combe International, LLC f/k/a/ Combe International Ltd. are DISMISSED WITHOUT PREJUDICE. Plaintiff's Motion for Default Judgment DN 22 is DENIED. Plaintiff's Motion for Extension of Time and for Rule 16 Conference DN 28 i s GRANTED. The Court will issue an amended Scheduling Order. Defendant Combe Incorporated shall respond to Plaintiff's Request for Admissions DN 30 -1 within 30 days of the entry of this Memorandum Opinion and Order. Plaintiff's Motion for Hearing DN 27 and Defendant's Motion to Strike DN 30 are DENIED AS MOOT. cc: Counsel, Plaintiff (pro-se) (DeW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:23-CV-00056-GNS
MARK SHANNON

PLAINTIFF

v.
COMBE INCORPORATED et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss (DN 18), Plaintiff’s
Motion for Default Judgment (DN 22), Plaintiff’s Motion for Hearing and for Rule 16
Conference (DN 27), Plaintiff’s Motion for Extension of Time (DN 28), and Defendant’s Motion
to Strike (DN 30). The motions are ripe for adjudication.
I.

BACKGROUND

Plaintiff Mark Shannon (“Shannon”) filed this action alleging personal injuries arising
from the use of Just For Men® hair dye, which he contends was defective. (Am. Compl. 5-6,
DN 11). Along with two other Defendants, Shannon has sued Defendants Combe Laboratories
LLC (incorrectly named as Combe Laboratories Inc.) (“Combe Labs”) and Combe International,
LLC f/k/a/ Combe International Ltd. (“Combe International”) (collectively “Moving
Defendants”). (Am. Compl. 2-3).
Moving Defendants have moved to dismiss Shannon’s claims due to lack of jurisdiction.
(Defs.’ Mot. Dismiss, DN 18). Shannon has moved for default judgment against all Defendants,
for a Fed. R. Civ. P. 16 conference, and for additional time to conduct discovery. (Pl.’s Mot.
Default J., DN 22; Pl.’s Mot. Rule 16 Conference, DN 27; Pl.’s Mot. Extension Time, DN 28).

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II.
A.

DISCUSSION

Defendants’ Motion to Dismiss

Moving Defendants seeks dismissal of Shannon’s claims against them due to lack of
personal jurisdiction. (Defs.’ Mot. Dismiss 3-8). Under Fed. R. Civ. P. 12(b)(2), a litigant may
challenge the Court’s authority to entertain for an action for “lack of personal jurisdiction.” Fed.
R. Civ. P. 12(b)(2). Personal jurisdiction has two forms: general and specific. See Miller v.
AXA Winterthur Ins. Co., 694 F.3d 675, 678-79 (6th Cir. 2012). Moving Defendants contend
that the Court lacks either general or specific jurisdiction over them. (Defs.’ Mot. Dismiss 3-8).
Shannon has not responded to this motion.1
When a defendant challenges personal jurisdiction, the plaintiff bears the burden of
proving jurisdiction. See Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (citing
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). “Additionally, in the face
of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings but
must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.”
Id. (citing Weller v. Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir. 1974)).
The only facts in the record regarding jurisdiction are provided by Moving Defendants
through the affidavits of Stephen Thomas (“Thomas”), who is the Vice President and Plant
Manager of Combe Labs, and Michele A. Tesbir (“Tesbir”), who is the Vice President, Chief

1

LR 7.1 provides that “[f]ailure to timely respond to a motion may be grounds for granting the
motion.” LR 7.1(c). “Failure to respond to a dispositive motion will be grounds for granting the
motion.” Paulmann v. Hodgdon Powder Co., No. 3:13-CV-00021-CRS-DW, 2014 WL
4102354, at *1 (W.D. Ky. Aug. 18, 2014) (citing Humphrey v. U.S. Att’y Gen.’s Off., 279 F.
App’x 328, 331 (6th Cir. 2008); Scott v. Tennessee, 878 F.2d 382, 1989 WL 72470, at *2 (6th
Cir. 1989)); see also Directv, LLC v. Kuhn, No. 5:14 CV 2657, 2016 WL 1244928, at *2 (N.D.
Ohio Mar. 30, 2016) (“[A] district court’s power to grant dispositive motions because they are
unopposed is firmly settled.”). Thus, because Shannon has failed to respond or otherwise oppose
the motion to dismiss, dismissal would be warranted on this basis alone.
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Financial Officer, and Treasurer of Combe International. (Thomas Aff. ¶ 2, DN 18-1; Tesbir
Aff. ¶ 2, DN 18-2). The Court has reviewed this motion and is ruling based on the affidavits
alone. See Theunissen, 935 F.2d at 1458 (“Presented with a properly supported 12(b)(2) motion
and opposition, the court has three procedural alternatives: it may decide the motion upon the
affidavits alone; it may permit discovery in aid of deciding the motion; or it may conduct an
evidentiary hearing to resolve any apparent factual questions. The court has discretion to select
which method it will follow, and will only be reversed for abuse of that discretion.” (internal
citation omitted) (citing Mich. Nat’l Bank v. Quality Dinette, Inc., 888 F.2d 462, 466 (6th Cir.
1989); Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989))). “Where
the court relies solely on the parties’ affidavits to reach its decision, the plaintiff must make only
a prima facie showing that personal jurisdiction exists in order to defeat dismissal.” Id. (citing
Serras, 875 F.2d at 1214; Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1168-69 (6th Cir. 1988);
Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir. 1980)).
1.

General Jurisdiction

General jurisdiction arises when a defendant has affiliations so “continuous and
systematic” with a forum as to render it “essentially at home” there, thus allowing courts in that
forum to exercise jurisdiction over any and all claims against it.2 See Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citation omitted).

2

As a sister court has explained:
In the context of subject matter jurisdiction based on diversity, the citizenship of a
limited liability corporation includes the citizenship of each of its members.
Delay v. Rosenthal Collins Grp., Inc., 585 F.3d 1003, 1005 (6th Cir. 2009). Yet,
courts have found that the citizenship of a limited partnership’s members is not
relevant to personal jurisdiction analysis, as “[t]he concepts of subject-matter and
personal jurisdiction . . . serve different purposes, and these purposes affect the
legal character of the two requirements.” Tenn. Ins. Gaur. Ass’n v. Penguin
3

Combe Labs is a limited liability company (“LLC”) organized under Delaware law, and
its principal place of business is in Illinois. (Thomas Aff. ¶ 4). Combe International is an LLC
organized in Delaware, and its principal place of business is in New York. (Tesbir Aff. ¶ 4).
Combe Labs has a manufacturing facility in Illinois, and Combe International owns only its
principal place of business in New York without any employees, manufacturing facilities, or
research facilities in the United States. (Thomas Aff. ¶ 5; Tesbir Aff. ¶¶ 6-7). Notably absent in
the record is any fact showing that either entity is at home in Kentucky or that “their affiliations
with [] [Kentucky] are so ‘continuous and systematic’ as to render them essentially at home in”
Kentucky. Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (internal quotation marks omitted)
(quoting Brown, 564 U.S. at 919).
For these reasons, Shannon has failed to meet his burden of a prima facie showing of
general jurisdiction over Moving Defendants.
2.

Specific Jurisdiction

In contrast to general jurisdiction, specific jurisdiction arises from “minimum contacts”
between a person and the forum, and permits the forum’s courts to adjudicate “issues deriving
from, or connected with,” those particular contacts. Brown, 564 U.S. at 919 (citation omitted).
In determining whether personal jurisdiction exists over a nonresident defendant, the Court must
apply the law of the state in which it sits. See Third Nat’l Bank in Nashville v. WEDGE Grp.
Inc., 882 F.2d 1087, 1089 (6th Cir. 1989) (citing Cohn, 839 F.2d at 1167). Under Kentucky law,
Random House, LLC, 271 F. Supp. 3d 959, 966 (M.D. Tenn. 2017) (quoting Ins.
Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701
(1982)).
Brewer v. All. Coal, LLC, No. 20-41-DLB-EBA, 2021 WL 3057380, at *3 (E.D. Ky. July 20,
2021) (alteration in original). Thus, for purpose of the personal jurisdiction analysis, the Court is
to treat an LLC like a corporate entity without consideration of the citizenship of the LLC’s
members.
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jurisdiction over out-of-state defendants is governed by KRS 454.210. In Caesars Riverboat
Casino, LLC v. Beach, 336 S.W.3d 51 (Ky. 2011), the Kentucky Supreme Court explained that
“[o]nly after the requirements of KRS 454.210 have been satisfied can it be said that personal
jurisdiction over a non-resident extends to the outer limits permitted by federal due process.” Id.
at 57. It created a two-step process to apply proper long-arm jurisdiction:
First, review must proceed under KRS 454.210 to determine if the cause of action
arises from conduct or activity of the defendant that fits into one of the statute’s
enumerated categories. If not, then in personam jurisdiction may not be
exercised. When the initial step results in a determination that the statute is
applicable, a second step of analysis must be taken to determine if exercising
personal jurisdiction over the non-resident defendant offends his federal due
process rights.
Id. The Kentucky Supreme Court continued, “[w]hile we believe it fair to say that these
provisions should be liberally construed in favor of long-arm jurisdiction, their limits upon
jurisdiction must be observed as defined.” Id. at 56. Thus, this Court must first determine which
long-arm statute provision applies before considering minimum contacts and purposeful
availment. See id. “If, however, the defendant’s activities do not fit into one of the statute’s
enumerated categories, ‘then in personam jurisdiction may not be exercised,’ and the inquiry
ends.” Cmty. Ass’n of Underwriters of Am., Inc. v. TTI Consumer Power Tools, Inc., No. 3:23CV-107-RGJ, 2023 WL 8851666, at *4 (W.D. Ky. Dec. 20, 2023) (citing Beach, 336 S.W.3d at
57).
In relevant part KRS 454.210 provides:
A court may exercise personal jurisdiction over a person who acts directly or by
an agent, as to a claim arising from the person’s:
1.
Transacting any business in this Commonwealth;
2.
Contracting to supply services or goods in this Commonwealth;
3.
Causing tortious injury by an act or omission in this Commonwealth;
4.
Causing tortious injury in this Commonwealth by an act or omission
outside this Commonwealth if he regularly does or solicits business, or engages in
any other persistent course of conduct, or derives substantial revenue from goods
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used or consumed or services rendered in this Commonwealth, provided that the
tortious injury occurring in this Commonwealth arises out of the doing or
soliciting of business or a persistent course of conduct or derivation of substantial
revenue within the Commonwealth; [or]
5.
Causing injury in this Commonwealth to any person by breach of warranty
expressly or impliedly made in the sale of goods outside this Commonwealth
when the seller knew such person would use, consume, or be affected by, the
goods in this Commonwealth, if he also regularly does or solicits business, or
engages in any other persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered in this Commonwealth . . . .
KRS 454.210(2)(a)(1)-(5).3 Shannon alleges that his injuries arise from an allegedly defective
product that was sold with inadequate warnings. (Am. Compl. 5-6). He alleges that both
Moving Defendants are a “Manufacturer/Distributor” of the product. (Am. Compl. 3).
As to Combe Labs, the record does not establish specific jurisdiction over this entity. It
is not the manufacturer of the allegedly defective product. (Thomas Aff. ¶ 8). Combe Labs was
not involved with “or made any decisions concerning the research, design, development,
manufacture, testing, formulation, production, labeling, sale, distribution, marketing, or
advertising” of the product. (Thomas Aff. ¶ 11). Likewise, Combe Labs had no involvement in
creating the instructions or warning labels for the product, or designed its packaging. (Thomas
Aff. ¶¶ 9-10). Combe Labs “does not perform any mixing or reformulation of any returned Just
For Men® Products.” (Thomas Aff. ¶ 12). Overall, there is an absence of any evidence as to
Combe Labs’ business activities in Kentucky or any effect of its business activities on this
forum. Therefore, Shannon has not made a prima facie showing that any provision of the longarm statute applies to Combe Labs, and this Court lacks specific jurisdiction over this entity.
The record also does not show that there is specific jurisdiction over Combe
International. This entity “is principally an international holding and licensing company. It has
3

In their motion, Moving Defendants do not cite the long-arm statute or address any of its
specific provisions. Rather, they address the allegations in support of Shannon’s claims. (Defs.’
Mot. Dismiss 6-8).
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the exclusive rights, title and interest in trademarks, inventions and know-how related to Combe
Incorporated’s products sold outside of the United States and Canada.” (Tesbir Aff. ¶ 5). Like
Combs Labs, Combe International is not and has not been involved with “or made any decisions
relating to, product research, design, development, manufacture, testing, formulation, production,
labeling, packaging, sale, promotion, or advertising of consumer products sold in the United
States”, including the allegedly defective product at issue in this case. (Tesbir Aff. ¶ 8). Thus,
Shannon has not made a prima facie showing that the long-arm statute applies to Combe
International, and this Court lacks specific jurisdiction over this entity.
For these reasons, the Court lacks personal jurisdiction over Moving Defendants, and
their motion to dismiss is granted.
B.

Plaintiff’s Motion for Default Judgment

Shannon moves for default judgment based on mistaken belief that all Defendants have
failed to file an answer to the Amended Complaint by August 28, 2023. (Pl.’s Mot. Default J. 12). As the Court docket reflects, however, all Defendants filed the Answer by that deadline, and
Moving Defendants also moved to dismiss the Amended Complaint on the same date. (Answer,
DN 18; Defs.’ Mot. Dismiss, DN 19). Accordingly, no Defendant has defaulted, and Shannon is
not entitled to entry of default or default judgment against any Defendant. This motion is denied.
C.

Remaining Motions

In light of the Court’s ruling on Moving Defendants’ dispositive and Shannon’s default
judgment motions, it is necessary to reset the deadlines in this matter, and Shannon has
specifically moved to amend the Scheduling Order, which will be granted.

(Pl.’s Mot.

Extension, DN 28). The other remaining pending motions will be denied as moot, and the Court
will issue a separate amended Scheduling Order to reset the relevant deadlines in this case.

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III.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1.

Defendants’ Motion to Dismiss (DN 18) is GRANTED, and Plaintiff’s claims

against Defendants Combe Laboratories LLC (incorrectly named as Combe Laboratories Inc.)
and Combe International, LLC f/k/a/ Combe International Ltd. are DISMISSED WITHOUT
PREJUDICE.
2.

Plaintiff’s Motion for Default Judgment (DN 22) is DENIED.

3.

Plaintiff’s Motion for Extension of Time and for Rule 16 Conference (DN 28) is

GRANTED. By separate order, the Court will issue an amended Scheduling Order resetting
deadlines including discovery, and Defendant Combe Incorporated shall respond to Plaintiff’s
Request for Admissions (DN 30-1) within 30 days of the entry of this Memorandum Opinion
and Order.
4.

Plaintiff’s Motion for Hearing (DN 27) and Defendant’s Motion to Strike (DN 30)

are DENIED AS MOOT.

February 5, 2024

cc:

counsel of record
Plaintiff, pro se

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