Addelson et al v. Sanofi S.A. et al

Filing 46

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Defendants Sanofi-Aventis U.S. LLC and Sanofi U.S. Services Inc.'s Motion to Dismiss the New Jersey Plaintiff's Claims for Lack of Personal Jurisdiction and Improper Venue [ECF No. 7 ] is GRANTED. IT IS FURTHER ORDERED that Defendants Sanofi-Aventis U.S. LLC and Sanofi U.S. Services Inc.'s Motion to Sever [ECF No. 9 ] is DENIED, as moot. IT IS FURTHER ORDERED that Defendants Sanofi-Aventis U.S. LLC and Sanofi U.S. Services Inc.'s Motion to Stay [ECF No. 11 ], is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' Motion to Remand [ECF No. 19 ] is DENIED. Signed by District Judge E. Richard Webber on 10/25/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BARBARA ADDELSON, et al.,
Plaintiff(s),
v.
SANOFI S.A., et al.,
Defendant(s).

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No. 4:16CV01277 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants Sanofi-Aventis U.S. LLC and Sanofi
U.S. Services Inc.’s Motion to Dismiss the New Jersey Plaintiff’s Claims for Lack of Personal
Jurisdiction and Improper Venue [ECF No. 7], Defendants Sanofi-Aventis U.S. LLC and Sanofi
U.S. Services Inc.’s Motion to Sever [ECF No. 9], Defendants Sanofi-Aventis U.S. LLC and
Sanofi U.S. Services Inc.’s Motion to Stay [ECF No. 11], and Plaintiffs’ Motion to Remand
[ECF No. 19].
I.

BACKGROUND
Plaintiffs Barbara Addelson and Dorethea Braxton (“Plaintiffs”) filed a petition in the

Circuit Court of the City of St. Louis, Missouri, alleging Defendants Sanofi S.A., Aventis
Pharma S.A., Sanofi-Aventis U.S. Services Inc., and Sanofi-Aventis U.S. LLC manufactured,
marketed, and sold a defective and unreasonably dangerous pharmaceutical drug, Taxotere,
causing permanent alopecia.1 ECF No. 5. Plaintiffs assert nine counts against Defendants: (1)
Strict Liability; (2) Manufacturing Defect; (3) Design Defect; (4) Failure to Warn; (5)
Negligence; (6) Breach of Express Warranty; (7) Breach of Implied Warranty; (8) Negligent

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Alopecia is a type of hair loss.

Misrepresentation; and (9) Fraud. ECF No. 5. On August 4, 2016, Defendants Sanofi U.S.
Services, Inc. and Sanofi-Aventis U.S. LLC (“Defendants”) removed the matter to this Court on
the basis of diversity jurisdiction. Subsequent to removal, Defendants filed a Motion to Dismiss,
Motion to Sever, and Motion to Stay. Plaintiffs filed a Motion to Remand. Defendants Sanofi
S.A. and Aventis Pharma S.A. have not been served.
For purposes of this Motion to Dismiss, the Court accepts as true the following facts
alleged in Plaintiffs’ Complaint. Great Rivers Habitat Alliance v. Fed. Emergency Mgmt.
Agency, 615 F.3d 958, 988 (8th Cir. 2010). Plaintiff Barbara Addelson (“Plaintiff Addelson”) is
a citizen of St. Louis County, Missouri. From November 2010, through March 2011, Plaintiff
Addelson took Taxotere in the City of St. Louis, pursuant to a doctor’s prescription to treat breast
cancer. Plaintiff Dorethea Braxton (“Plaintiff Braxton”) is a citizen of New Jersey. From
December 2008, through May 2009, Plaintiff Braxton took Taxotere, pursuant to a doctor’s
prescription to treat breast cancer.
Defendant Sanofi S.A. is a corporation, organized and existing under the laws of France,
with its principal place of business at 54 Rue La Boetie, 75008, Paris, France. Defendants
Aventis Pharma S.A., Sanofi-Aventis U.S. Services Inc., and Sanofi-Aventis U.S. LLC are
wholly-owned subsidiaries of Defendant Sanofi S.A. Defendant Aventis Pharma S.A. is a
corporation, organized and existing under the laws of France, with its principal place of business
at 20 Avenue Raymond Aron, 92160, Antony, France. Defendant Sanofi-Aventis U.S. Services
Inc. is a Delaware corporation, with its principal place of business at 55 Corporate Drive,
Bridgewater, New Jersey, 08807. Defendant Sanofi-Aventis U.S. LLC is a Delaware limited
liability company, with its principal place of business at 55 Corporate Drive, Bridgewater, New
Jersey, 08807. All Defendants were engaged in the business of research, designing, testing,

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formulating, inspecting, labeling, manufacturing, packaging, marketing, distributing, producing,
processing, promoting, and selling Taxotere in St. Louis, Missouri, and the United States.
Defendants Sanofi-Aventis U.S. Services Inc. and Sanofi-Aventis U.S. LLC, have been licensed
to do business in Missouri, and maintained a registered agent in the State of Missouri, during all
relevant time periods.2
II.

ORDER OF THE MOTIONS
In their various motions, responses, and replies, the parties argue the merits of the issues,

but also assert arguments regarding which motion should be decided first. Plaintiffs argue their
Motion to Remand and a determination of subject matter jurisdiction should be addressed by the
Court before Defendants’ Motion to Dismiss and issues of personal jurisdiction. Defendants
argue the opposite.
“Customarily, a federal court first resolves doubts about its jurisdiction over the subject
matter” of a case before addressing personal jurisdiction issues. Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 578 (1999). However, there are circumstances in which a court may first
address personal jurisdiction, such as when personal jurisdiction is straightforward while subject
matter jurisdiction is “difficult, novel, or complex.” Id. at 588.
In Guillette v. PD-RX Pharmaceuticals Incorporated, the Western District of Oklahoma
held the question of personal jurisdiction was straightforward because it concerned issues of
sufficiency of contacts and the consequences of registration to do business in a state, whereas the
subject matter jurisdiction inquiry was complex because it included the doctrine of fraudulent
misjoinder, which the Tenth Circuit Court of Appeals had not adopted or rejected. No. 5:15-CV00564-R, 2016 WL 3094073 at *2 (W.D. Ok. Jun. 1, 2016); see also In re Testosterone
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Plaintiffs’ Petition contains many other facts which the Court does not include because they are
not relevant to the issues raised in the pending motions.
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Replacement Therapy Prods. Liab. Coordinated Pretrial Proceedings, 164 F. Supp. 3d 1040,
1045-46 (N.D. Ill. 2016).
The same situation has occurred here. The personal jurisdiction question is
straightforward, while the issue of subject matter jurisdiction is more complicated, due to the
doctrine of fraudulent misjoinder. Therefore, this Court will first address the issues of personal
jurisdiction before subject-matter jurisdiction.
III.

MOTION TO DISMISS
Defendants assert, in their Motion to Dismiss, Plaintiff Braxton’s claims must be

dismissed for lack of personal jurisdiction. Defendants argue Plaintiff Braxton is from New
Jersey and there are no allegations connecting her claims to Missouri. Further, Defendants
contend they also have no connections to Missouri. In the alternative, Defendants contend
Plaintiff Braxton’s claims should be transferred, because the Eastern District of Missouri is an
improper venue for litigation of her claims. Plaintiffs assert personal jurisdiction over
Defendants is established through Plaintiff Addelson’s claims, which is enough to establish
personal jurisdiction over Defendants for all claims.
A.

Standard

“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) (en

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banc), the Court’s jurisdictional inquiry is limited to determining whether asserting personal
jurisdiction over the defendant comports with due process. See Mo. Rev. Stat. § 506.500.
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 established through either general
or specific jurisdiction. Daimler AG v. Bauman, 134 S. Ct. 746 (2014).
B.

General Jurisdiction

General jurisdiction is a court’s power to hear any matter in which the party is involved.
Yaeger v. Wyndham Vacation Resorts, No. 4:14-CV-795-JCH, 2014 WL 3543426 at *2 (E.D.
Mo. Jul. 17, 2014). General jurisdiction is always present in the corporation’s domicile, which is
its place of incorporation and its principal place of business. Daimler AG, 134 S. Ct. at 760. The
test for establishing general jurisdiction outside of the corporation’s domicile is whether the
corporation’s contacts with the state are so “continuous and systematic” as to make it essentially
at home in the forum state. Id. at 761.
It is clear Plaintiff Braxton has not established general jurisdiction over Defendants in
Missouri. Defendants are incorporated in Delaware and have their principal places of business in
New Jersey. Further, there are no facts to establish continuous and systematic contacts with

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Missouri to make Defendants at home in Missouri. Simply doing continuous and systematic
business in a state is not enough to establish general jurisdiction. Daimler A.G.. 134 S. Ct. at
760-61. There are no allegations, such as Defendants maintained an office in Missouri, or
employees here, or any other facts, which would suggest Defendants are at home in Missouri.
See Neeley v. Wolters Kluwer Health, Inc., No. 4:11-CV-325, 2013 WIL 3929059 at *4 (E.D.
Mo. Jul. 29, 2013). Plaintiffs’ allegations simply state Defendants distributed, marketed,
promoted, and sold Taxotere in St. Louis and Missouri. This is not enough to establish general
jurisdiction as outlined in Daimler. See Beard v. Smithkline Beecham Corp., No. 4:15-CV-1833
RLW, 2016 WL 1746113 at *2 (E.D. Mo. May 3, 2016).
C.

Specific Jurisdiction

Specific jurisdiction is a court’s power over the party as it relates to the specific matter
before it. Yaeger, 2014 WL 3543426 at *2. A court may not have power over the defendant for
all claims, but it can have power over it with regard to specific claims, because of the
relationship between the defendant, forum, and the litigation. Daimler AG, 134 S. Ct. at 758.
There must be a “nexus between a plaintiff’s claims and a defendant’s forum-based activities.”
In re: Zofran (Ondansetron) Products Liability Litigation, No. 1:15-CV-13760-FDS, 2016 WL
2349105 at *5 (D. Mass. May 4, 2016) (citing Mass. Sch. Of Law at Andover, Inc. v. Am. Bar.
Ass’n, 142 F.2d 26, 34 (1st Cir. 1998)). The Eighth Circuit has identified five factors to establish
a substantial connection with a 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.
Keeley v. Pfizer Inc., No. 4:15-CV-00583 ERW, 2015 WL 3999488 at *3 (E.D. Mo. Jul. 1, 2015)
(citing Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir. 2006)). The specific personal

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jurisdiction inquiry must be conducted separately for the claims of each individual plaintiff. In re
Testosterone Replacement Therapy Prods. Liab., 164 F. Supp. 3d at 1047.3
Here, Plaintiffs have not alleged any facts which connect the claims of Plaintiff Braxton
with Defendants’ Missouri contacts. No allegations have been included regarding the nature and
quality of the contacts with the forum state, the quantity of the contacts, or the relationship
between Plaintiff Braxton’s claims and those contacts. There are simply no facts connecting
Plaintiff Braxton to the State of Missouri. See Barron v. Pfizer, Inc., 4:15-CV-584 CAS, 2015
WL 5829867 (E.D. Mo. Oct. 6, 2015).
In Keeley, this Court held simply marketing, promoting, and selling a pharmaceutical
drug in Missouri does not establish specific jurisdiction, especially when no facts are provided to
support these conclusory allegations. 2015 WL 3999488 at *3. The Court further held, although
the inquiry into specific jurisdiction does not focus on plaintiff’s contacts with the forum state,
plaintiff’s injury must be connected to defendant’s contacts with the forum state. Id. (citing
Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014). In this matter, Plaintiff Braxton’s injury cannot
be connected to Defendants’ contacts with Missouri as currently pled in the Petition.
In In re: Zofran, the District of Massachusetts held a Missouri court did not have specific
jurisdiction over claims brought by out-of-state plaintiffs because the non-Missouri plaintiffs did

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Two decisions from the Eastern District of Missouri have mentioned the issue of personal
jurisdiction over out-of-state plaintiffs’ claims in addressing motions to remand. See Gracey v.
Janssen Pharm., Inc., No. 4:15-CV-407 CEJ, 2015 WL 2066242 at *3 (E.D. Mo. May 4, 2015);
Bradshaw v. Mentor Worldwide, LLC, 4:15-CV-332 SNLJ, 2015 WL 3545192 at *2 (E.D. Mo.
Jun. 4, 2015). The opinion of the Northern District of Illinois, and the opinions of the First,
Third, and Fifth Circuit Courts of Appeals are helpful in reaching the Court’s conclusions, here.
Supplemental specific personal jurisdiction does not exist; personal jurisdiction must exist
separately for each claim. See In re Testosterone Replacement Therapy Prods. Liab., 164 F.
Supp. 3d at 1048; Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275, n.6 (5th Cir. 2006);
Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001); Phillips Exeter Acad. v. Howard Phillips
Fund, 196 F.3d 284, 289 (1st Cir. 1999).
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not allege they were prescribed Zofran in Missouri, took Zofran in Missouri, or they suffered
injuries in Missouri. Id. The Court also found plaintiffs did not allege any facts connecting the
conduct of the defendant in Missouri to any of plaintiff’s claims. Id.; see also Neeley, 2013 WIL
3929059 at *4 (finding that creating and promoting a defective device that injures plaintiffs in
another state is unrelated to the activities of the defendants in this state). This is the situation this
Court faces in this matter. The Court does not have specific personal jurisdiction over Plaintiff
Braxton’s claims.
D.

Consent Jurisdiction

Plaintiffs argue Defendants have consented to jurisdiction in Missouri because they have
registered with the Missouri Secretary of State and have maintained a registered agent in
Missouri. Both of these are requirements under Missouri law.
In Beard, Judge White held personal jurisdiction is not established by appointment of an
agent for service of process. 2016 WL 1746113 at *2. Even though the Eighth Circuit has
previously ruled appointing a registered agent in the state does establish jurisdiction,4 Judge
White held, and this Court agrees, recent United States Supreme Court Decisions have held more
substantial contacts are required to hale a litigant into the Court’s forum. Id. Many states,
including Missouri, require businesses to register with the Secretary of State and maintain a
registered agent in the state. If these requirements create jurisdiction, national companies would
be subject to suits in almost every state in the country. This would not comport with the
principles of personal jurisdiction the Supreme Court established in Daimler. Keeley, 2015 WL
3999488 at *4; see also Neeley v. Wyeth LLC, 4:11-CV-00325, 2015 WL 1456984 at *3 (E.D.
Mo. Mar. 30, 2015). This Court finds Judge White’s reasoning to be persuasive. Registering with

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See Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir. 1990).
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the Secretary of State and maintaining a registered agent in Missouri does not create personal
jurisdiction.
E.

Improper Venue

Defendants argued if the Court found personal jurisdiction, it should dismiss or transfer
the claims for improper venue. Because the Court has found personal jurisdiction is lacking over
Plaintiff Braxton’s claims, those claims must be dismissed and the Court need not address the
issue of improper venue.
IV.

MOTION TO SEVER
In their Motion to Sever, Defendants assert Plaintiffs have no relationship or facts linking

them together; therefore, their claims should be severed. Because the Court will grant dismissal
of Plaintiff Braxton’s claims, Defendants’ Motion to Sever is moot.
V.

MOTION TO REMAND
In their Motion to Remand, Plaintiffs assert the Court lacks subject matter jurisdiction

because there is a lack of complete diversity. Plaintiffs claim Defendants’ citizenship for
purposes of diversity is New Jersey, as is Plaintiff Braxton’s. Because the Court will grant
dismissal of Plaintiff Braxton’s claims, the remaining Plaintiff and Defendants are diverse from
one another and the Court has subject matter jurisdiction. Plaintiffs’ Motion to Remand will be
denied.
VI.

MOTION TO STAY
Finally, in their Motion to Stay, Defendants assert the Court should stay this matter

pending transfer of the case to multidistrict litigation. Plaintiffs oppose the stay, arguing the
matter should be remanded rather than delaying disposition of the case for several years while it
goes through multidistrict litigation only to be remanded. The Court will stay this matter pending

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transfer of the case to multidistrict litigation to conserve judicial resources and promote
efficiency.

Accordingly,
IT IS HEREBY ORDERED that Defendants Sanofi-Aventis U.S. LLC and Sanofi U.S.
Services Inc.’s Motion to Dismiss the New Jersey Plaintiff’s Claims for Lack of Personal
Jurisdiction and Improper Venue [ECF No. 7] is GRANTED.
IT IS FURTHER ORDERED that Defendants Sanofi-Aventis U.S. LLC and Sanofi
U.S. Services Inc.’s Motion to Sever [ECF No. 9] is DENIED, as moot.
IT IS FURTHER ORDERED that Defendants Sanofi-Aventis U.S. LLC and Sanofi
U.S. Services Inc.’s Motion to Stay [ECF No. 11], is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Remand [ECF No. 19] is
DENIED.
Dated this 25th Day of October, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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