Veitch et al v. National Hockey League et al

Filing 31

ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction as to Andre Deveaux. (Written Opinion) Signed by Judge Susan Richard Nelson on 10/10/2019. (MR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE: NATIONAL HOCKEY LEAGUE
PLAYERS’ CONCUSSION INJURY
LITIGATION,
This document relates to:
Veitch v. NHL, et al., Case No. 16-cv02683 (SRN/JSM)

MDL No. 14-2551 (SRN/BRT)

MEMORANDUM OPINION
AND ORDER

Brian Gudmundson and David Cialkowski, Zimmerman Reed, LLP, 1100 IDS Center, 80
South Eighth Street, Minneapolis, Minnesota 55402, for Plaintiffs;
Richard R Gordon, Gordon Law Offices, Ltd., 211 W. Wacker Dr., Suite 500, Chicago,
Illinois 60606, for Plaintiffs;
Stephen G. Grygiel, Steven D. Silverman, and William Sinclair, Silverman, Thompson,
Slutkin & White, LLC, 201 North Charles Street, Suite 2600, Baltimore, Maryland
21201, for Plaintiffs;
Stuart A. Davidson, Robbins, Geller, Rudman & Dowd, LLP, 120 East Palmetto Park
Road, Boca Raton, Florida 33432, and Leonard B. Simon, Robbins, Geller, Rudman &
Dowd, LLP, 655 West Broadway, Suite 1900, San Diego, California 92101, for Plaintiffs;
Thomas Demetrio and William T. Gibbs, Corboy & Demetrio, P.C., 33 North Dearborn
Street, Chicago, Illinois 60602, for Plaintiffs;
Robert K. Shelquist, and Rebecca A. Peterson, Lockridge, Grindal, Nauen, PLLP, 100
Washington Avenue South, Suite 2200, Minneapolis, Minnesota 55401, for Plaintiffs;
Daniel J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre
Baker Daniels, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis,
MN 55402; John H. Beisner, and Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom
LLP, 1440 New York Avenue, Northwest, Washington, D.C. 20005-2111; Shepard
Goldfein, and Matthew M. Martino, Skadden, Arps, Slate, Meagher & Flom LLP, Four
Times Square, New York, New York 10036; Joseph Baumgarten and Adam M. Lupion,
Proskauer Rose LLP, Eleven Times Square, New York, New York 10036, for Defendant.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter comes before the Court on Defendant National Hockey League’s (the

“NHL”) 1 motion to dismiss plaintiff Andre Deveaux’s claims in the Complaint for lack of
personal jurisdiction. [Doc. No. 21.] See Fed. R. Civ. P. 12(b)(2). In the alternative, the
NHL urges the Court to transfer this action to the Southern District of New York, pursuant
to 28 U.S.C. § 1404(a). (Id.)
For the reasons set forth below, the Court grants Defendant’s motion and dismisses
Deveaux’s claims without prejudice.
II.

FACTUAL AND PROCEDURAL BACKGROUND
The general facts pertaining to the underlying MDL are set forth in previous rulings

from this Court, and are incorporated here by reference. See NHL Players’ Concussion
Injury Litig., No. 14-MDL-2551 [Doc. No. 126], 2015 WL 1334027 (D. Minn. March 25,
2015); NHL Players’ Concussion Injury Litig., No. 14-MDL-2551, 327 F.R.D. 245
(D. Minn. 2018). This substantially similar action, also brought on behalf of former NHL
players, was directly filed in this district. The allegations here essentially mimic the
complaint in the MDL. See NHL Players’ Concussion Injury Litig., No. 14-MDL-2551
[Doc. No. 615]. Stated briefly, this case arises from repetitive head trauma–including

1

For this motion, the NHL also refers to the National Hockey League Board of
Governors because both NHL Parties are treated similarly in the Complaint for purposes
of alleging personal jurisdiction. (Am. Compl. ¶¶ 1, 4,117-118, 120.)
2

concussive and sub-concussive head injuries–sustained by former NHL players during
their professional careers. (Am. Class Action Compl. [Doc No. 8] (“Am. Compl.”) ¶¶ 9,
579.) The NHL, according to Plaintiffs, knew or should have known, that by “permitting
and promoting fighting” in the sport, players would suffer brain trauma with debilitating
long-term effects. (Id. ¶¶ 9, 121-147.) The effects suffered from this NHL-sanctioned
fighting

include

“memory

loss,

dementia,

depression,

[Chronic

Encephalopathy] ‘CTE’, and related symptoms, including addiction.”

Traumatic
(Id. ¶ 129.)

Moreover, Plaintiffs allege that the NHL concealed studies linking repetitive concussive
events to neurodegenerative conditions. (Id. ¶¶ 7, 593.)
Based on these allegations, each plaintiff appears to assert two negligence-based
causes of action and one fraud-based cause of action against the NHL.
e.g., id. ¶¶ 569-596, Counts XXXXVII-XXXXIX.)

(See,

Although the negligence claims

overlap, the thrust of the allegations are that the NHL was negligent in disregarding its duty
to (i) keep NHL players safe; and (ii) advise NHL players of all risks, including the risk of
brain damage. (Id. ¶¶ 574, 586.) By failing to do so, NHL players suffered injuries,
including “long-term, degenerative brain damage” and “other neurological deficits.”
(Id. ¶¶ 574, 587.) In the fraud claim, Plaintiffs allege that the NHL was in a position of
“superior knowledge” about the long-term effects of head hits. (Id. ¶ 589.) The NHL
concealed these risks. (Id. ¶ 593.) In reasonably relying on the NHL’s silence about
returning to games “too soon after sustaining a traumatic brain injury” and even outright
denials of “any later-in-life risks,” NHL players suffered significant brain damage,
neurocognitive, and neurological deficits. (Id. ¶¶ 593, 595.)
3

Deveaux, a Canadian citizen, is the only remaining plaintiff in this action.
(Id. ¶¶ 89, 569-596, Counts XXXXVII-XXXXIX.) To support the allegations above, he
asserts that he suffered multiple serious head traumas that were improperly diagnosed and
treated during his NHL career. (Id. ¶ 92.) Deveaux’s NHL career spanned a “total of 31
games” and involved 15 hockey fights. (Id. ¶¶ 90-91.) The Complaint is silent about the
location of these hockey games or fights.
In this motion, the NHL challenges this Court’s personal jurisdiction and venue over
Deveaux and his claims. (See Def.’s Mem. Of Law in Supp. Of Mot. To Dismiss Am.
Compl. Pursuant to Fed. R. Civ. P. 12(b)(2) [Doc. No. 21] (“Def.’s Mem. Dismiss”).) The
NHL—organized as an unincorporated association (Am. Compl. ¶ 2)—argues that it is not
subject to general jurisdiction in Minnesota because its headquarters and principal place of
business is in New York. (Def.’s Mem. Dismiss at 1, 5-7.) As to specific jurisdiction, the
NHL argues that Deveaux does not allege any connection between his claims and the
NHL’s contacts with Minnesota. (Id. at 7-9.) In support of the NHL’s motion, the NHL
filed an affidavit attaching a Fact Sheet submitted by Deveaux (the “Fact Sheet”). (See
Decl. of Daniel J. Connolly (“Connolly Decl.”), Ex. 1 [Doc. No. 24].) Deveaux’s Fact
Sheet states that his current residence is in Canada. (Id. at 2.) The Fact Sheet also identifies
three NHL hockey teams that Deveaux played on during his career, and about 120 hockey
fights involving Deveaux, spanning from 2000-2013. (Id. at 4-12.) Fourteen of these fights
were alleged to have occurred while Deveaux was playing in the NHL. (Id. at 5-12.)
Neither of the NHL teams for which Deveaux played were in Minnesota, nor were any of
Deveaux’s hockey fights in Minnesota. (Id.)
4

Deveaux did not respond to the NHL’s motion.
III.

DISCUSSION
A.

Standard of Review

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the
plaintiff must make a prima facie showing that the court’s exercise of jurisdiction is proper.
Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014). The plaintiff may
meet this burden by pleading facts sufficient to “support a reasonable inference that the
defendant[] can be subjected to jurisdiction within the [forum] state.” Dever v. Hentzen
Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004). This inference is subject to testing
not solely on the pleadings alone, however, but by any “affidavits and exhibits presented”
with the motion. Dairy Farmers of Am., Inc. v. Bassett & Walker Int’l, Inc., 702 F.3d 472,
475 (8th Cir. 2012) (citation omitted). When—as is the case here—the Court has not
conducted an evidentiary hearing, it must view the facts in the light most favorable to the
nonmoving party, and resolve all factual conflicts in that party’s favor. Pangaea, Inc. v.
Flying Burrito LLC, 647 F.3d 741, 745 (8th Cir. 2011). Yet “the party seeking to establish
the court’s personal jurisdiction carries the burden of proof and that burden does not shift
to the party challenging jurisdiction.” Fastpath, 760 F.3d at 820.
B.

The Law of Personal Jurisdiction

In order to find that personal jurisdiction over a defendant is proper, a federal court
sitting in diversity must first determine that certain state and constitutional prerequisites
have been met. Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc., 65 F.3d 1427,
1431 (8th Cir. 1995). Even here, when an action is directly filed into the MDL, both state
5

and constitutional prerequisites must be satisfied. See, e.g., In re Heartland Payment Sys.,
Inc. Customer Data Sec. Breach Litig., No. CIV.A. H-10-171, 2011 WL 1232352, *5-13
(S.D. Tex. Mar. 31, 2011) (dismissing a case directly filed in the MDL court for lack of
personal jurisdiction when defendant did not stipulate to 12(b)(2) defense). 2 First, the court
must consider whether the requirements of Minnesota’s long-arm statute have been
satisfied. Second, the court must ask whether exercising jurisdiction over the defendant
would comport with the Due Process Clause of the Fourteenth Amendment. In Minnesota,
however, these two inquiries combine into a single due process examination, because the
state long-arm statute has been held to be co-extensive with the constitutional bounds of
jurisdiction. See Soo Line R.R. Co. v. Hawker Siddeley Canada, Inc., 950 F.2d 526, 528
(8th Cir. 1991) (citing Rostad v. On-Deck, Inc., 372 N.W.2d 717, 719 (Minn. 1985)).
The Due Process Clause permits a court to exercise personal jurisdiction over a nonresident defendant when that defendant has “certain minimum contacts with [the forum
state] such that the maintenance of the suit does not offend ‘traditional notions of fair play
and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation
omitted). Underlying this standard is the conviction that “those who live or operate

2

As noted above, this action is a directly filed suit rather than one transferred as part of
the MDL. See NHL Players’ Concussion Injury Litig., No. 14-MDL-2551 [Doc. Nos. 1,
3, 148, 195, 206, 333, 1145]; but cf. In re FCA US LLC Monostable Elec. Gearshift
Litig., No. 16-MDL-02744 [Doc. No. 108] (E.D. Mich. April 19, 2017) (analyzing
personal jurisdiction in JPML-transferred case by examining defendant’s contacts with
the transferor forum). Thus, when a defendant does not consent to personal jurisdiction
in a directly filed suit, any alleged defects in personal jurisdiction are analyzed by
examining defendant’s contacts with the MDL forum. In re Heartland Payment Sys., Inc.
Litig., 2011 WL 1232352 at *5-13.
6

primarily outside a State have a . . . right not to be subjected to judgment in its courts as a
general matter.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011); see also
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1779 (2017) (requiring nonresident class members to establish jurisdiction, on a plaintiff-by-plaintiff, claim-by-claim
assessment, by demonstrating that the claims involve “an activity or occurrence that takes
place in the forum State.”) (internal quotation omitted). Thus, the Supreme Court has made
clear that there must be some showing that the defendant’s “conduct and connection with
the forum State are such that he should reasonably anticipate being haled into court there.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
From these core principles, the Eighth Circuit has distilled a five-factor test to be
used in analyzing the propriety of a court’s exercise of personal jurisdiction over a nonresident defendant. This test considers: (1) the nature and quality of the contacts with the
forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the
cause of action to the contacts; (4) the interest of the forum state in providing a forum for
its residents; and (5) the convenience of the parties. See Wells Dairy, Inc. v. Food Movers
Int'l, Inc., 607 F.3d 515, 518 (8th Cir. 2010) (citing Bell Paper Box, Inc. v. U.S. Kids, Inc.,
22 F.3d 816, 819 (8th Cir. 1994)). “The first three factors are closely related and are of
primary importance, while the last two factors are secondary.” Pecoraro v. Sky Ranch for
Boys, Inc., 340 F.3d 558, 562 (8th Cir. 2003) (citing Digi–Tel Holdings, Inc. v. Proteq
Telecomm. (PTE), Ltd., 89 F.3d 519, 523 (8th Cir. 1996)).
Moreover, the third factor, the relation of the cause of action to the contacts, serves
to distinguish the appropriate theory of jurisdiction: general or specific. “A court with
7

general jurisdiction may hear any claim against that defendant, even if all the incidents
underlying the claim occurred in a different State.” Bristol–Myers Squibb, 137 S. Ct. at
1780 (emphasis in original). Specific personal jurisdiction, on the other hand, “is very
different.” Id. “In order for a state court to exercise specific jurisdiction, the suit must
arise out of or relate to the defendant’s contacts with the forum.” Id. (citations and
alterations omitted).
1. General Personal Jurisdiction
At the outset, the Court concludes that general or “all-purpose” jurisdiction over the
NHL is clearly lacking. As the Eighth Circuit has explained “general jurisdiction refers to
the power of a state to adjudicate any cause of action involving a particular defendant,
regardless of where the cause of action arose, while specific jurisdiction requires that the
cause of action arise from or relate to a defendant’s actions within the forum state.” Wells
Dairy, Inc., 607 F.3d at 518 (internal quotation and citation omitted). To assert general
jurisdiction over a foreign corporation, a court must first determine that the corporation’s
affiliations with the forum are so “continuous and systematic” as to “render [it] essentially
at home in the forum State.” Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014) (internal
quotations and alterations omitted).
Two places according to Daimler that are “paradigm all-purpose forums” for a
corporation are where it is incorporated and where it has its principal place of business. Id.
at 760. This standard has been applied by other courts to unincorporated associations, like
the NHL. See Waldman v. Palestine Liberation Org., 835 F.3d 317, 332 (2d Cir. 2016)
(“Daimler’s reasoning was based on an analogy to general jurisdiction over individuals,
8

and there is no reason to invent a different test for general personal jurisdiction depending
on whether the defendant is an individual, a corporation, or another entity”); Dallas Texans
Soccer Club v. Major League Soccer Players Union, 247 F. Supp. 3d 784, 788-89 (E.D.
Tex. 2017) (applying the general jurisdiction test in Daimler to a player’s union similarly
organized as an unincorporated association.). 3
Here, the NHL is not “essentially at home” in Minnesota. The parties agree that the
NHL is headquartered in New York, but the Complaint is silent about whether the NHL’s
principal place of business is in a different State. (Compare Def.’s Mem. Dismiss at 6 with
Am. Compl. ¶ 117.) The NHL alleges, without opposition, that its principal place of
business is also in New York. (Def.’s Mem. Dismiss at 6); see also Hertz Corp. v. Friend,
559 U.S. 77, 92-93 (2010) (finding a corporation’s main headquarters usually serves as a
corporation’s place of business).

The Court finds—in the absence of any contrary

evidence—that the NHL is a non-resident entity, with its principal place of business in New
York. Deveaux appears to agree tacitly with this result, because the Complaint also alleges
that the NHL had the necessary “continuous and systematic” contacts required for this
Court to exercise jurisdiction over foreign corporations. (Am. Compl. ¶ 120.)
Nonetheless, while the Complaint alleges “continuous and systematic” contacts by
the NHL in this forum, Deveaux fails to sufficiently allege any such contacts. For instance,

3

In Daimler, the Supreme Court also applied the “essentially at home” standard to an
unincorporated entity. The Supreme Court held that MBUSA was not subject to general
personal jurisdiction in California because it was neither incorporated in California, nor
was its principal place of business there. Daimler, 134 S. Ct. at 761-62. MBUSA is not a
corporation. It is a Delaware limited liability company. Id. at 751-52.
9

he alleges that the NHL has a franchised club and team in Minnesota, but acknowledges
that the NHL has clubs and teams in several other states. (Id. ¶¶ 1, 117 (recognizing the
NHL “operates out of many different cities and states within the United States”).) Thus,
taking into account the NHL’s “activities nationwide . . . [t]hese contacts are not so
continuous and systematic” as to render the NHL essentially at home here. See, e.g., Dallas
Texans Soccer Club, 247 F. Supp. 3d at 788-89 (finding a player’s union representing 588
players from twenty teams nationwide was not “at home” in a forum, despite having 59
members and two representatives from two teams within the forum). As such, the Court
may not exercise general jurisdiction over the NHL, and thus turns to an analysis of specific
jurisdiction.
2. Specific Personal Jurisdiction
When considering specific jurisdiction, the Court examines the nature, quality, and
quantity of NHL’s contacts with Minnesota, and those contacts’ relation to Plaintiffs’ suit.
First, the Court finds that the NHL’s alleged contacts with Minnesota in the Complaint are
limited to: (1) NHL players, other than Deveaux, who were residents of Minnesota and
suffered from repetitive head trauma as a result of the NHL’s acts and/or omissions; and
(2) NHL players, other than Deveaux, who played for a Minnesota team in the NHL and
suffered head trauma as a result of the NHL’s acts and/or omissions. (See Am. Compl.
¶¶ 16, 41-42, 46, 51.)
Fatal to Deveaux and his claims are that the contacts pleaded in the Complaint do
not specifically relate to his causes of action. These attenuated contacts are clearly not
connected to his claims, and “[w]hen there is no such connection, specific jurisdiction is
10

lacking regardless of the extent of a defendant’s unconnected activities in the State.”
Bristol–Myers Squibb, 137 S. Ct. at 1781. Here, Deveaux brings three separate claims
against the NHL alleging negligence and fraud. (Am. Compl. ¶¶ 89, 569-596, Counts
XXXXVII-XXXXIX.) The basis of these claims, among other things, is the NHL’s alleged
“disregard for Deveaux’s safety” and “knowing[] conceal[ment]” of the risks Deveaux
suffered from repetitive head traumas. (See id. ¶¶ 574, 585, 593.) This purported
misconduct was not alleged to have occurred in Minnesota.
From a plain reading of the Complaint then, Deveaux’s claims do not “arise out of
or relate to” any NHL contacts in Minnesota. See Bristol–Myers Squibb, 137 S. Ct. at
1780. And like the non-resident plaintiffs in Bristol–Myers, Deveaux is a Canadian citizen,
who does not plead any injury in Minnesota resulting from the NHL’s acts or omissions.
Id. at 1777–80, 17882. The Complaint is silent about the location of Deveaux’s alleged
injuries. The Fact Sheet indeed demonstrates that Deveaux did not suffer any injury in this
State. (Connolly Decl., Ex. 1.) Deveaux was not involved in a single hockey brawl in
Minnesota, and also never played for a Minnesota team in the NHL. (Id. at 4-12.) In sum,
the Complaint does not allege any contacts that could support specific personal jurisdiction
here. 4
The Court thus concludes that the three main jurisdictional factors considered by
the Eighth Circuit—the nature, quality, and quantity of the defendant’s contacts with the

4

The NHL argues that its contacts with Minnesota by virtue of having a club in the forum
cannot support specific jurisdiction. (Def.’s Mem. Dismiss at 8-9.) In any event,
Deveaux does not allege that his claims are specifically connected to the NHL’s club in
this forum.
11

forum, and the relation of those contacts to the cause of action—weigh against exercising
specific personal jurisdiction over the NHL. The two remaining, secondary factors—the
interest of the forum and the convenience of the parties—do not alter the Court’s
determination despite the underlying MDL.
While centralizing pretrial proceedings in the MDL court generally “conserve[s] the
resources of the parties, their counsel, and the judiciary,” see In re Baycol Products
Liability Litig., 180 F. Supp. 2d 1378, 1380 (J.P.M.L. 2001), the remaining secondary
factors do not weigh in Deveaux’s favor, in light of this Court’s prior ruling. In declining
to certify the MDL-plaintiffs’ proposed classes, this Court held that each plaintiff’s claim
is subject to an individualized choice-of-law analysis. NHL Players’ Concussion Injury
Litig., 327 F.R.D. at 257. Thus, as no party here is a Minnesota citizen and the location of
the injuries occurred elsewhere, it is unlikely that this forum would have a clear interest in
providing a forum for out-of-state residents, applying the laws of a different State.
As to the convenience of the parties, the same considerations apply. In examining
Deveaux’s specific causes of action, his claims do not appear to turn on this forum. No
party here is a Minnesota citizen, and there is no evidence in the record that any witnesses
reside here, or relevant documents are in this forum. Because potential witnesses and
documents are located elsewhere, the balance of convenience “is in equipoise.” See
Datalink Corp. v. Perkins Eastman Architects, P.C., 33 F. Supp. 3d 1068, 1076 (D. Minn.
2014). 5 All factors thus considered, the Court concludes that it may not exercise specific

5

In accepting service of this action directly filed in the MDL, the parties agreed that the
NHL reserved all defenses as to jurisdiction and venue. [Doc. No. 4.] The NHL’s refusal
12

personal jurisdiction over the NHL here, at this juncture.
Deveaux bore the burden to establish that the court’s exercise of personal
jurisdiction would be proper, but failed to respond to the NHL’s motion. Because Deveaux
has not met his burden, the Court will dismiss his claims against the NHL without
prejudice. LeDuc Gifts & Specialty Prod., LLC v. New Thermo-Serv, Ltd., 382 F. Supp.
3d 885, 892 (D. Minn. 2019) (dismissing the case without prejudice when plaintiff did not
meet prima facie burden of establishing the court’s personal jurisdiction over defendant).
Accordingly, the Court grants Defendant’s motion to dismiss for lack of personal
jurisdiction, and therefore declines to address Defendant’s alternative request to transfer
venue pursuant to 28 U.S.C. 1404(a).
IV.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED that:
1.

Defendant’s Motion to Dismiss for lack of personal jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(2) [Doc. No. 21] is GRANTED.

2.

The case is dismissed WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: October 10, 2019

/s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

to waive these defenses also corroborates the Court’s conclusion that the MDL does not
tip the scale in Deveaux’s favor.
13