Simmons et al v. GlaxoSmithKline LLC
Filing
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Judge F. Dennis Saylor, IV: ORDER entered. Memorandum and Order on Defendant's Motion to Dismiss and Plaintiffs' Motion to Remand. (This Document Relates to: Kierra Simmons, et al., v. GlaxoSmithKline, LLC 1:15-cv-13760-FDS.)Associated Cases: 1:15-md-02657-FDS, 1:15-cv-13760-FDS(Pezzarossi, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
IN RE: ZOFRAN (ONDANSETRON) )
PRODUCTS LIABILITY LITIGATION )
)
This Document Relates to:
)
)
KIERRA SIMMONS, et al., v.
)
GLAXOSMITHKLINE LLC,
)
1:15-cv-13760-FDS
)
____________________________________)
MDL No. 1:15-md-2657-FDS
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS
AND PLAINTIFFS’ MOTION TO REMAND
SAYLOR, J.
This case is one of many consolidated in a multi-district litigation proceeding arising out
of claims that the use of the drug Zofran (ondansetron) by pregnant women caused birth defects.
Plaintiffs Kierra Simmons, Tia Hancock, Joanna Tyler, and Dawn Barchiesi originally filed suit
in Missouri state court against defendant GlaxoSmithKline, LLC (“GSK”) alleging that their use
of Zofran during pregnancy caused congenital heart defects in their children. GSK removed the
action to the United States District Court for the Eastern District of Missouri and moved to
dismiss the claims of three of the plaintiffs for lack of personal jurisdiction. Plaintiffs moved to
remand the case for lack of subject-matter jurisdiction due to a lack of complete diversity of
citizenship among the parties. The Missouri state court stayed the case pending its transfer to
this district by the Judicial Panel for Multidistrict Litigation for consolidation pursuant to 28
U.S.C. § 1407.
Plaintiffs have now renewed their motion to remand. GSK opposes remand on the
ground that the Court should first decide the question of personal jurisdiction raised by its
motion to dismiss before deciding the question of subject-matter jurisdiction. In the alternative,
GSK contends that complete diversity exists based on the doctrines of fraudulent joinder and
procedural misjoinder. For the following reasons, defendant’s motion to dismiss the claims of
plaintiffs Hancock, Tyler, and Barchiesi will be granted, and plaintiffs’ motion to remand will be
denied.
I.
Background
Defendant GlaxoSmithKline, LLC manufactures the drug ondansetron under the brand
name Zofran. Zofran was first approved in 1991 for the prevention of post-operative nausea and
vomiting associated with anesthesia and for nausea and vomiting caused by radiotherapy and
chemotherapy. In addition to those approved uses, GSK is alleged to have marketed Zofran “offlabel” for pregnancy-related nausea and vomiting, commonly known as “morning sickness.”
Plaintiffs in this multidistrict litigation allege that Zofran was in fact unsafe for use in
pregnant women, and that in utero exposure to Zofran caused birth defects in children born to
mothers who took the drug. This particular action involves the claims of four plaintiffs: Kierra
Simmons, Tia Hancock, Joanna Tyler, and Dawn Barchiesi. All four plaintiffs bring eight counts
against defendant GSK arising out of congenital heart defects suffered by their children and
allegedly caused by the plaintiffs’ use of name-brand Zofran during pregnancy.
The specific complaint at issue here was filed in state court in Missouri, removed to
federal court, and then transferred to this MDL proceeding. Although filed in Missouri, the
complaint asserts that only one of the four plaintiffs—Kierra Simmons—is a Missouri citizen.
The complaint alleges that Tia Hancock is a citizen of Delaware; Joanna Tyler is a citizen of
North Carolina; and Dawn Barchiesi is a citizen of Pennsylvania. All four have asserted similar
2
and parallel product-liability claims against GSK, but those claims are otherwise unrelated. 1
GSK is a limited liability company with one member, GlaxoSmithKline Holdings, Inc., which is
a Delaware corporation. 2
II.
Analysis
By statute, federal district courts have original jurisdiction over civil actions between
citizens of different states when the amount in controversy exceeds $75,000. 28 U.S.C. § 1332.
“This statutory grant requires complete diversity between the plaintiffs and defendants in an
action.” Picciotto v. Continental Cas. Co., 512 F.3d 9, 17 (1st Cir. 2008) (citing Strawbridge v.
Curtiss, 7 U.S. (3 Cranch) 267 (1806); Halleran v. Hoffman, 966 F.2d 45, 47 (1st Cir. 1992)).
Plaintiffs contend that the case should be remanded to state court because the presence of
a Delaware plaintiff (Hancock) and a Delaware defendant (GSK) means that there is not
complete diversity between the parties. GSK, however, argues that the issue is not as
straightforward as it appears. First, GSK contends that the Court should decide the issue of
personal jurisdiction raised by its motion to dismiss before turning to the issue of subject-matter
jurisdiction. Second, GSK contends that even if the Court first considers subject-matter
jurisdiction, the doctrines of fraudulent joinder and procedural misjoinder preclude a finding that
the parties are not diverse.
A.
Order of Analysis
The initial question is which jurisdictional question should be decided first. When a
party challenges both personal jurisdiction and subject-matter jurisdiction, there is no hard-and-
1
The four plaintiffs are joined pursuant to Rule 52.05 of the Missouri Rules of Civil Procedure, which
permits the joinder of plaintiffs asserting claims “arising out of the same transaction, occurrence or series of
transactions or occurrences and if any question of law or fact common to all of them will arise in the action.”
2
The parties do not dispute that GSK is a citizen of Delaware for diversity purposes.
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fast rule dictating the order in which the district court must decide those issues. See Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 584-88 (1999). In cases where subject-matter jurisdiction
“involve[s] no arduous inquiry, . . . both expedition and sensitivity to state courts’ coequal
stature should impel the federal court to dispose of that issue first.” Id. at 587-88. However, if
“a district court has before it a straightforward personal jurisdiction issue presenting no complex
question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and
novel question,” then the court may address personal jurisdiction first. Id. at 588.
In this case, considerations of judicial economy strongly suggest resolving the issue of
personal jurisdiction ahead of subject-matter jurisdiction. Resolution of the question of subjectmatter jurisdiction necessarily involves an assessment of GSK’s contention that the three nonMissouri plaintiffs were either fraudulently joined or procedurally misjoined. “[T]he possibility
of fraudulent joinder can make the subject matter jurisdiction analysis ‘rather complicated,’
especially if the inquiry involves ‘the more unusual question of ‘fraudulent joinder’ of a
plaintiff.’” In re Testosterone Replacement Therapy Products Liab. Litig. Coordinated Pretrial
Proceedings, 2016 WL 640520, at *3 (N.D. Ill. Feb. 18, 2016) (quoting Foslip Pharm., Inc. v.
Metabolife Int'l, Inc., 92 F. Supp. 2d 891, 899 (N.D. Iowa 2000)). The application of the
doctrine of procedural misjoinder involves similarly complicated questions of law. See
Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., 813 F. Supp. 2d 242, 246 (D. Mass.
2011) (“The [First Circuit] has not adopted or addressed the doctrine, and the only district courts
within the First Circuit that have addressed the issue have declined to apply it.”). 3 Both inquiries
are made even more complicated where, as here, the alleged joinder deficiency is based not on
3
“[Q]uestions of law in MDL-transferred cases are governed by the law of the transferee court.” In re
Fresenius Granuflo/Naturalyte Dialysate Products Liab. Litig., 76 F. Supp. 3d 321, 327 (D. Mass. 2015); In re
Korean Air Lines Disaster of September 1, 1983, 829 F.2d 1171, 1174 (D.C. Cir. 1987).
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the merits of the underlying claim, but on the ability of the Court to exercise personal jurisdiction
over the defendant against whom the claim is made. Thus, the Court will first turn to GSK’s
contention that it is not subject to personal jurisdiction as to the claims of the three non-Missouri
plaintiffs.
B.
Personal Jurisdiction
When a district court considers a motion to dismiss for lack of personal jurisdiction
without first holding an evidentiary hearing, a prima facie standard governs its determination.
United States v. Swiss American Bank, 274 F.3d 610, 618 (1st Cir. 2001). In conducting a prima
facie analysis, the court is required to take specific facts affirmatively alleged by the plaintiff as
true (whether or not disputed), construing them in the light most favorable to the plaintiff; the
court, however, should not credit “conclusory allegations or draw farfetched inferences.”
Ticketmaster–New York v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994). Although the court will
construe the facts in the light most favorable to the plaintiff in a motion to dismiss, the plaintiff
still has the burden of demonstrating each jurisdictional requirement. See Swiss American Bank,
274 F.3d at 618.
In a multidistrict litigation, a transferee court has personal jurisdiction over a defendant
only if the transferor court would have had jurisdiction. In re FMC Corp. Patent Litig., 422 F.
Supp. 1163, 1165 (Jud. Pan. Mult. Lit. 1976) (“Following a transfer, the transferee judge has all
the jurisdiction and powers over pretrial proceedings in the actions transferred to him that the
transferor judge would have had in the absence of transfer.”). “In determining whether a nonresident defendant is subject to its jurisdiction, a federal court exercising diversity jurisdiction is
the functional equivalent of a state court sitting in the forum state.” Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002) (quoting Sawtelle v.
Farrell, 70 F.3d 1381, 1387 (1st Cir.1995)) (citation and internal quotation marks omitted). This
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case was transferred from United States District Court for the Eastern District of Missouri;
therefore, this Court may exercise personal jurisdiction over a defendant only to the same extent
that the state court in Missouri could have exercised such jurisdiction.
The exercise of personal jurisdiction over a defendant must be authorized by statute and
be consistent with the due process requirements of the United States Constitution. Nowak v. Tak
How Invs., Ltd., 93 F.2d 708, 712 (1st Cir. 1996). “A district court may exercise authority over a
defendant by virtue of either general or specific jurisdiction.” Massachusetts Sch. of Law at
Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998). A defendant may also
consent to personal jurisdiction in a forum where jurisdiction would not otherwise exist. See
General Contracting & Trading Co., LLC v. Interpole, Inc., 940 F.2d 20, 22 (1st Cir. 1991).
1.
General Jurisdiction
“A court may assert general jurisdiction over foreign (sister-state or foreign-country)
corporations to hear any and all claims against them when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citing International Shoe Co.
v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945)). The
parties do not dispute that GSK’s sole member, GlaxoSmithKline Holdings, Inc., is incorporated
in Delaware and maintains its principal place of business there. The Supreme Court has
indicated that a foreign corporation will be deemed “at home” based on its operations in a forum
other than its formal place of incorporation or principal place of business only in an “exceptional
case.” See Daimler AG v. Bauman, 134 S. Ct. 746, 761 n.19 (2014) (internal citations omitted).
The complaint here contains no allegations suggesting that GSK’s operations in Missouri
are so “continuous and systematic” as to render this an “exceptional case”; rather, it appears that
GSK simply markets and sells the product in Missouri, as it presumably does in the other 49
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states. See id. at 761 (“[T]he exercise of general jurisdiction in every State in which a
corporation ‘engages in a substantial, continuous, and systematic course of business . . . [would
be] unacceptably grasping.”).
2.
Consent to Jurisdiction
Plaintiffs further contend that GSK is subject to general jurisdiction in Missouri because
it has “consented” to that jurisdiction by appointing a registered agent for service of process in
Missouri as required by statute. See Mo. Rev. Stat. § 351.586. The relevant portion of the
Missouri statute for service on a foreign corporation provides:
The registered agent of a foreign corporation authorized to transact business in
this state is the corporation's agent for service of process, notice, or demand
required or permitted by law to be served on the foreign corporation. . . .
Mo. Rev. Stat. § 351.594. Courts that have considered the issue have reached differing
conclusions, particularly in the Eastern District of Missouri. Compare Keeley v. Pfizer Inc.,
2015 WL 3999488 (E.D. Mo. Jul. 1, 2015) (no consent to personal jurisdiction based on
Missouri statutes requiring appointment of registered agent), and Neeley v. Wyeth LLC, 2015 WL
1456984 (E.D. Mo. Mar. 30, 2015) (same), with Chalkey v. SmithKline Beecham Corp., 2016
U.S. Dist. LEXIS 21462 (E.D. Mo. Feb. 23, 2016) (upholding personal jurisdiction based on
consent), and Trout v. SmithKline Beecham, 2016 WL 427960 (E.D. Mo. Feb. 4, 2016) (same).
It nonetheless appears clear that such a finding would distort the language and purpose of
the Missouri registration statute and would be inconsistent with the Supreme Court’s ruling in
Daimler, 134 S. Ct. 746. The recent opinion of the Second Circuit in Brown v. Lockheed Martin
Corp. on this issue is persuasive:
[Plaintiff’s] interpretation of Connecticut's registration statute is expansive. It
proposes that we infer from an ambiguous statute and the mere appointment of an
agent for service of process a corporation's consent to general jurisdiction,
creating precisely the result that the Court so roundly rejected in Daimler. It
appears that every state in the union—and the District of Columbia, as well—has
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enacted a business registration statute. See Tanya J. Monestier, Registration
Statutes, General Jurisdiction, and the Fallacy of Consent, 36 Cardozo L.Rev.
1343, 1363–65 & nn. 109 & 111–12 (2015) (listing statutes). States have long
endeavored to protect their citizens and levy taxes, among other goals, through
this mechanism. If mere registration and the accompanying appointment of an instate agent—without an express consent to general jurisdiction—nonetheless
sufficed to confer general jurisdiction by implicit consent, every corporation
would be subject to general jurisdiction in every state in which it registered, and
Daimler's ruling would be robbed of meaning by a back-door thief.
814 F.3d 619, 640 (2d Cir. 2016). As with the Connecticut statute at issue in Brown, the
Missouri statute does not mention consent to personal jurisdiction in Missouri courts at all, much
less provide for explicit consent to personal jurisdiction for claims based on conduct and injuries
arising outside of Missouri. 4 Accordingly, GSK did not consent to personal jurisdiction in
Missouri by appointing a registered agent for service of process in the state.
3.
Specific Personal Jurisdiction
“Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff's
claims and a defendant's forum-based activities.” Massachusetts Sch. of Law, 142 F.3d at 34
(citations omitted). The parties do not dispute that specific personal jurisdiction over GSK exists
in Missouri for the claims brought by plaintiff Simmons, who is a Missouri resident.
However, “[q]uestions of specific jurisdiction are always tied to the particular claims
asserted.” Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289 (1st Cir. 1999)
(citing United Elec., Radio and Mach. Workers of Am. v. 163 Pleasant Street Corp., 960 F.2d
1080, 1089 (1st Cir. 1992) (“[T]he defendant's in-state conduct must form an ‘important, or [at
least] material, element of proof’ in the plaintiff's case”)). The complaint falls far short of
establishing any nexus between the non-Missouri plaintiffs’ claims and GSK’s Missouri-based
4
As the Brown court noted, “The inclusion of this phrase (‘permitted by law’) and the omission of any
specific reference to ‘general jurisdiction,’ to our reading, differentiates Connecticut's registration statute from
others that have been definitively construed to convey a foreign corporation's consent to general jurisdiction.”
Brown, 814 F.3d at 637.
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activities. Unlike plaintiff Simmons, the non-Missouri plaintiffs do not allege that they were
prescribed Zofran in Missouri, took Zofran in Missouri, or that their children suffered injuries in
Missouri. Nor do they allege any facts connecting the conduct of GSK in Missouri, if any, to
their own claims. Thus, to the extent that the claims of the non-Missouri plaintiffs relate to
GSK’s conduct in Missouri, they do so “only in the abstract or by analogy.” In re Testosterone
Replacement Therapy, 2016 WL 640520, at *5. It is therefore clear that a Missouri court would
not have specific personal jurisdiction over the claims brought by those out-of-state plaintiffs. 5
4.
Conclusion
Although the Court has specific personal jurisdiction over GSK for the claims brought by
plaintiff Kierra Simmons, there is no basis for personal jurisdiction over GSK for the claims
brought by the non-Missouri plaintiffs. Accordingly, GSK’s motion to dismiss will be granted
as to the claims of plaintiffs Tia Hancock, Joanna Tyler, and Dawn Barchiesi.
C.
Subject-Matter Jurisdiction
With the dismissal of plaintiffs Hancock, Tyler, and Barchiesi, the only remaining
plaintiff is Kierra Simmons. The parties do not dispute that she is a citizen of Missouri for
diversity purposes, and, as noted, the parties also do not dispute that GSK is a citizen of
Delaware. Thus, there is complete diversity among the parties and the Court therefore has
subject-matter jurisdiction over the dispute. Plaintiff’s motion to remand will be denied. 6
III.
Conclusion
For the foregoing reasons, defendant’s motion to dismiss for lack of personal jurisdiction
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Although plaintiffs have not specifically requested that it do so, the Court declines to adopt the doctrine of
pendent personal jurisdiction for the reasons outlined in In re Testosterone Replacement Therapy, 2016 WL 640520,
at *5-6.
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The presence of complete diversity following the dismissal of the non-Missouri plaintiffs makes it
unnecessary for the Court to reach the issues surrounding defendant’s argument that those plaintiffs’ joinder was
either fraudulent or procedurally improper.
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is GRANTED without prejudice as to the claims of plaintiffs Tia Hancock, Joanna Tyler, and
Dawn Barchiesi. Plaintiffs’ motion to remand is DENIED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: May 4, 2016
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