Keeley et al v. Pfizer, Inc.
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Pfizer Inc.'s Motion to Dismiss [ECF No. 5 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Jennifer Keeley and Jess Keeley's claims against Defendant Pfizer, Inc. shall be DISMISSED, without prejudice. Signed by District Judge E. Richard Webber on 6/1/15. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JENNIFER KEELEY and JESS KEELEY,
No. 4:15CV00583 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Pfizer Inc.’s Motion to Dismiss [ECF
Plaintiffs Jennifer Keeley (“Plaintiff Jennifer”) and Jess Keeley (“Plaintiff Jess”) initiated
this lawsuit by filing a Petition in in the Circuit Court of St. Louis City on March 23, 2015. On
April 6, 2015, Defendant Pfizer Inc. (“Defendant”) removed the Petition to this Court pursuant to
28 U.S.C. §§ 1332 and 1441. On May 6, 2015, Defendant filed its pending Motion to Dismiss
[ECF No. 5], for lack of personal jurisdiction. For purposes of this Motion to Dismiss, the Court
accepts as true the following facts alleged in Plaintiff’s Petition. Great Rivers Habitat Alliance
v. Fed. Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010).
Plaintiff Jennifer is Plaintiff Jess’s natural mother [ECF No. 8]. Plaintiff Jess was born
on March 23, 1995, in Columbus, Georgia. While Plaintiff Jennifer was pregnant with Plaintiff
Jess, she took the prescription drug Zoloft®. Defendant is incorporated in Delaware with its
principal place of business in New York. During the relevant time period, Defendant advertised,
analyzed, assembled, compounded, designed, developed, distributed, formulated, inspected,
labeled, manufactured, marketed, packaged, produced, promoted, processed, researched, tested,
and sold Zoloft® in Georgia, Missouri, Pennsylvania, and throughout the United States.
Defendant marketed, promoted, and sold Zoloft® throughout the United States, including St.
Plaintiffs allege Plaintiff Jess was born with birth defects caused by Plaintiff Jennifer’s
ingestion of Zoloft® during pregnancy. Plaintiffs assert four counts against Defendant: Strict
Products Liability, Defective Design (Count I), Strict Products Liability, Failure to Warn (Count
II), Negligence (Count III), and Fraudulent Misrepresentation and Concealment (Count IV).
Defendant now seeks to dismiss Plaintiffs’ claims for lack of personal jurisdiction.
“A federal court may exercise jurisdiction over a foreign defendant only to the extent
permitted by the forum state’s long-arm statute and by the Due Process Clause of the
Constitution.” Miller v. Nippon Carbon Co., 528 F.3d 1087, 1090 (8th Cir. 2008) (internal
quotations and citation omitted). Because the Missouri long-arm statute is construed as
extending personal jurisdiction to the fullest extent permitted by the Fourteenth Amendment’s
Due Process Clause, see J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. 2009),
the Court’s jurisdictional inquiry is limited to determining whether asserting personal jurisdiction
over the defendant comports with due process.
Where personal jurisdiction is controverted, the party asserting jurisdiction bears the
burden of establishing a prima facie case that jurisdiction exists. Johnson v. Woodcock, 444 F.3d
953, 955 (8th Cir. 2006). Thus, “[t]o survive a motion to dismiss, the plaintiff must state
sufficient facts in the complaint to support a reasonable inference that [the defendant] may be
subjected to jurisdiction in the forum state.” Steinbuch v. Cutler, 518 F.3d 580, 585 (8th Cir.
2008) (internal citation omitted). “The plaintiff’s ‘prima facie showing’ must be tested, not by
the pleadings alone, but by the affidavits and exhibits presented with the motions and opposition
thereto.” Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072-73 (8th Cir. 2004) (internal
quotations and citation omitted).
Personal jurisdiction can be general or specific. Daimler AG v. Bauman, 134 S.Ct. 746,
754 (2014). Specific jurisdiction refers to jurisdiction which “arises out of or relates to the
defendant’s contacts with the forum.” Id. (citing Helicopteros Nacionales de Columbia, S.A. v.
Hall, 466 U.S. 408, 414, n.8 (1984) (internal quotations omitted). A court may assert general
jurisdiction to hear “any and all claims against [a defendant] when their affiliations with the state
are so continuous and systematic as to render them essentially at home in the forum State.” Id.
(citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011) (internal
quotations omitted). Defendant asserts the Court lacks both general and specific jurisdiction.
The Supreme Court has limited general jurisdiction for a corporation to its place of
incorporation or principal place of business except in an “exceptional case.” Daimler, 134 S. Ct.
at 761, n. 19. In Daimler, Plaintiffs were Argentinian residents who brought suit in the United
States District Court for the Northern District of California against a German corporation
regarding actions of its Argentinian subsidiary in Argentina. Id. at 750-751. Plaintiffs claimed
the District Court had jurisdiction over the lawsuit because of the California contacts of
Mercedes-Benz USA, LLC, a subsidiary of the Defendant incorporated in Delaware with its
principal place of business in New Jersey. Id. This subsidiary distributed vehicles to dealerships
throughout the United States, including California. Id. The Court held Daimler is not “at home”
in California and cannot be sued there for injuries attributable to conduct in Argentina. Id.
Applying this holding, Plaintiffs have not alleged sufficient facts to establish general jurisdiction
Defendant is incorporated in Delaware and has a principal place of business in New
York. Defendant is not incorporated in Missouri nor is its principal place of business here; thus,
Plaintiff’s only other option is to establish this is an exceptional case and they have not done so.
The extent of Plaintiffs’ allegations is Defendant marketed and sold Zoloft® in Missouri. These
facts are much less than those alleged in Daimler and as the Supreme Court did not find personal
jurisdiction in Daimler, it cannot be found here. Simply marketing and selling a product in a
state does not make a defendant’s affiliations with the state so “continuous and systematic as to
render them essentially at home in the forum state.” Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2851 (2011).
Plaintiff cites to Keeton v. Hustler Magazine, Inc. 1 to support the proposition jurisdiction
may be based on a defendant’s continuous but limited general business in a state. However, in
Keeton, the Supreme Court found specific jurisdiction over the defendant; it was not discussing
general jurisdiction. 465 U.S. at 775-781 (discussion of minimum contacts between the
defendant and forum state). The sale of products into the forum state may be germane to specific
jurisdiction, but it does not create general jurisdiction. Goodyear, 131 S. Ct. at 2855. Plaintiffs
have not established general jurisdiction over Defendant.
Defendant also asserts Plaintiffs have not established specific jurisdiction. Specific
jurisdiction focuses on “the relationship among the defendant, the forum, and the litigation.”
465 U.S. 770 (1984).
Walkden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (citing Keeton, 465 U.S. at 775). “The
defendant’s suit-related conduct must create a substantial connection with the forum State.” Id.
The focus is on the contacts a defendant creates with the state, not connections to a plaintiff or
other third-parties who reside in the state. Id. at 1122. Specific jurisdiction can be found where
a corporation’s activities are continuous and systematic and give rise to the liabilities in the suit.
Daimler, 134 S. Ct. at 761 (citing International Shoe Co. v. Washington, 326 U.S. 310, 317
(1945). The Eighth Circuit has identified five factors to establish a substantial connection with
the forum state: (1) nature and quality of the contacts with the forum state, (2) quantity of the
contacts, (3) relation of the cause of action to those contacts, (4) interest of the forum state in
providing a forum for its residents, and (5) convenience of the parties. Johnson v. Woodcock,
444 F.3d 953, 956 (8th Cir. 2006) (citing Porter v. Berall, 293 F.3d 1073, 1076 (8th Cir. 2002)).
Plaintiffs do not allege any facts regarding the quality of the contacts with Missouri, the
quantity of those contacts, or the relation of the cause of action to those contacts. Plaintiffs
conclusively state Defendant made a contract or promise substantially connected with/or within
Missouri, committed and conspired to commit tortious acts in Missouri, and owned, used, or
possessed real estate in Missouri [ECF No. 8, ¶7]. Plaintiffs restated the Missouri long-arm
statute but did not provide any facts to support these conclusions. See Mo. Rev. Stat. § 506.500.
Simply stating Defendant marketed, promoted, and sold Zoloft® in Missouri does not establish
From the facts Plaintiff does allege, it is unclear how Defendant’s contacts with Missouri
relate to the cause of action in this suit. Plaintiff Jess was born in Georgia. There are no facts
suggesting Plaintiff was prescribed the medication in Missouri, purchased the medication in
Missouri, saw the advertisements in Missouri, or in any way was injured in Missouri. The
inquiry into specific jurisdiction does not focus on Plaintiff’s contacts with the forum state, but
Plaintiff’s injury must be connected to Defendant’s contacts with the forum state. Walden, 134
S. Ct. at 1123. In Keeton, even though Plaintiff had little contact with New Hampshire, the
Plaintiff suffered damages there. 465 U.S. at 776. Plaintiff’s injuries in New Hampshire, along
with Defendant’s contacts with the state which caused the injury, formed the basis of specific
jurisdiction. Id. That simply is not the case here. Plaintiffs have not alleged any facts to support
a finding of specific jurisdiction. Under Plaintiffs’ theory of jurisdiction, a national company
could be sued by any resident of any state in any state. This does not comport with “traditional
notions of fair play and substantial justice” as required by the Constitution. Daimler, 134 S. Ct.
at 754 (citations omitted).
Consent to Personal Jurisdiction
Plaintiffs contend Defendant has consented to jurisdiction in Missouri because Defendant
is registered to do business in Missouri and has a registered agent in Missouri. Every foreign
corporation is required to register with the Secretary of State and maintain a registered agent in
the state to transact business in Missouri. Mo. Rev. Stat. §§ 351.572, 351.586 (2014). Many
states have enacted similar statutes and national corporations are often registered in to do
business in several states. If following these statutes creates jurisdiction, national companies
would be subject to suit all over the country. This result is contrary to the holding in Daimler
that merely doing business in a state is not enough to establish general jurisdiction. Daimler, 134
S. Ct. at 761-62. The Supreme Court found “[s]uch exorbitant exercises of all-purpose
jurisdiction would scarcely permit out-of-state defendants to structure their primary conduct with
some minimum assurance as to where that conduct will and will not render them liable to suit.”
Id. (internal quotations omitted). A defendant’s consent to jurisdiction must satisfy the standards
of due process and finding a defendant consents to jurisdiction by registering to do business in a
state or maintaining a registered agent does not. 2 Thus, Defendant did not consent to
IT IS HEREBY ORDERED that Defendant Pfizer Inc.’s Motion to Dismiss [ECF No.
5] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Jennifer Keeley and Jess Keeley’s claims
against Defendant Pfizer, Inc. shall be DISMISSED, without prejudice.
Dated this1st Day of June, 2015.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
Plaintiffs cite to Knowlton v. Allied Van Lines, Inc. which held a defendant consented to
jurisdiction by designating an agent for service of process within the state. 900 F.2d 1196 (8th
Cir. 1990). In Knowlton, the Eighth Circuit was analyzing a Minnesota statute which required a
foreign corporation to be subject service of process by service on a registered agent in the state.
Id. at 1199. In contrast, the Missouri statutes requiring registration with the state and the
maintenance of a registered agent do not mention service of process at all. Mo. Rev. Stat. §§
351.572, 351.586. This distinction, along with the holding in Daimler, requires this Court to
reject the proposition Defendants have consented to jurisdiction by registering with the State of
Missouri and maintaining a registered agent within the state.
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