Zeavision, LLC v. Bausch & Lomb Incorporated et al

Filing 78

OPINION, MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Defendant s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6), or in the Alternative, to Stay or Transfer, [Doc. No. 45 ], is granted. IT IS FURTHER ORDERED that Plaintiffs Motion to Conduct Discovery Limited to the Issue of Personal Jurisdiction, [Doc. No. 55 ] is denied. Signed by District Judge Henry Edward Autrey on 11/21/22. (EAB)

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 1 of 12 PageID #: 368

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ZEAVISION, LLC,
Plaintiffs,
v.
BAUSCH & LOMB INCORPORATED,
Defendant.

)
)
)
)
) Case No. 4:21CV1487 HEA
)
)
)
)
)

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Pursuant
to Fed.R.Civ.P. 12(b)(2) and 12(b)(6), or in the Alternative, to Stay or Transfer,
[Doc. No. 45]. Plaintiff opposes the Motion. Also before the Court is Plaintiff’s
Motion to Conduct Discovery Limited to the Issue of Personal Jurisdiction, [Doc.
No. 55]. Defendant opposes this motion. For the reasons set forth below, the
Motion to Dismiss will be granted; the Motion for Discovery will be denied.
Relevant Allegations of Fact
Plaintiff’s First Amended Complaint alleges its claims arise under the
antitrust and unfair competition laws of the United States, 15 U.S.C. § 1, et seq.
Plaintiff also claims Defendant has directed monopolistic acts to Missouri and has
engaged in intentionally, knowingly, and/or recklessly published false and/or
misleading statements in commercial advertising or promotion. Plaintiff claims
Defendant has filed sham claims and has engaged in patent misuse. Specifically,

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 2 of 12 PageID #: 369

Plaintiff alleges Defendant: falsely claimed patent protection; made false
statements that it sells the only patented AREDS-2 supplement; forced and
attempted to force competitors to stop using AREDS and AREDS-2 in their
marketing; and required cessation of use of AREDS and AREDS-2 in marketing
by companies actually implementing those formulas as part of settlement
agreements. Plaintiff claims that each of these activities constitute actions in
restraint of trade.
Defendant moves to dismiss the First Amended Complaint because Plaintiff
has not sufficiently established the Court may exercise personal jurisdiction over it.
Plaintiff argues that it has established personal jurisdiction under both the Clayton
Act, 15 U.S.C. § 22 and specific jurisdiction.
Standard
“Personal jurisdiction over a defendant represents the power of a court to
enter a valid judgment imposing a personal obligation or duty in favor of the
plaintiff.” Viasystems, Inc. v. EBM Pabst St. Georgen GmbH & Co., KG, 646 F.3d
589, 592 (8th Cir. 2011) (internal quotation marks omitted). The plaintiff “bear[s]
the burden of establishing a prima facie showing of jurisdiction,” and the Court
views the facts in the light most favorable to the plaintiff. Kaliannan v. Liang, 2
F.4th 727, 733 (8th Cir. 2021). The evidentiary showing required at this stage is
minimal. Bros. & Sisters in Christ, LLC v. Zazzle, Inc., 42 F.4th 948, 951 (8th Cir.
2

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 3 of 12 PageID #: 370

2022). “A prima facie showing ‘is accomplished by pleading sufficient facts to
support a reasonable inference that the defendant can be subjected to jurisdiction
within the state.’” Id. (quoting K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d
588, 591–92 (8th Cir. 2011)). In addition, the Court “may look beyond the
pleadings to determine whether personal jurisdiction exists, including reviewing
affidavits and other exhibits.” Pederson v. Frost, 951 F.3d 977, 979 (8th Cir.
2020).
The Clayton Act
According to Plaintiff, personal jurisdiction and proper venue in this Court
are established pursuant to the Clayton Act. Special venue and service-of-process
rules apply to private antitrust lawsuits brought against corporate defendants under
the Clayton Act:
Any suit, action, or proceeding under the antitrust laws against a corporation
may be brought not only in the judicial district whereof it is an inhabitant,
but also in any district wherein it may be found or transacts business; and all
process in such cases may be served in the district of which it is an
inhabitant, or wherever it may be found.
15 U.S.C. § 22. When Congress has provided for worldwide service of process, as
it has done in the Clayton Act, “due process requires only that [a defendant] have
sufficient minimum contacts with the United States as a whole to support personal
jurisdiction.” KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 730–31
(7th Cir. 2013); accord In re Fed. Fountain, Inc., 165 F.3d 600, 601–02 (8th Cir.
3

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 4 of 12 PageID #: 371

1999) (holding that, when a federal statute permits nationwide service of process,
Congress has “exercised its authority to furnish federal district courts with the
power to exert personal jurisdiction nationwide”).
Plaintiff has alleged “on information and belief” that Defendant transacts
business within the State of Missouri, within the meaning of Section 22.
Under the Clayton Act, venue over a corporate defendant is proper “in any
district wherein it ... transacts business.” 15 U.S.C. § 22. “[A] corporation is
engaged in transacting business in a district if in fact, in the ordinary and usual
sense, it transacts business therein of any substantial character.” United States v.
Scophony Corp. of Am., 333 U.S. 795, 807, 68 S.Ct. 855, 92 L.Ed. 1091 (1948)
(internal quotation marks omitted). The purpose of the “transacts business”
language in the Clayton Act is to make the “practical, everyday business or
commercial concept of doing or carrying on business ‘of any substantial character’
[ ] the test of venue.” Campos v. Ticketmaster Corp., 140 F.3d 1166, 1173 (8th Cir.
1998) (quoting Scophony, 333 U.S. at 807, 68 S.Ct. 855).
As Defendant argues, Plaintiff’s First Amended Complaint fails to establish
jurisdiction under the Clayton Act for several reasons. Initially, the allegations are
made “on information and belief.” This type of pleading is ordinarily insufficient
to establish personal jurisdiction. See C. Pepper Logistics, LLC v. Lanter Delivery

4

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 5 of 12 PageID #: 372

Systems, LLC, No. 4:20-cv-1444, 2021 WL 3725680, at *4 n.6 (E.D. Mo. Aug. 23,
2021).
Furthermore, the First Amended Complaint fails to allege venue under
Section 22, rather, the First Amended Complaint specifically alleges venue
pursuant to 28 U.S.C. § 1391.
As [Defendant] notes, there are unique considerations when assessing
personal jurisdiction in the context of an antitrust claim under the Clayton
Act. [] Section 12 of the Clayton Act grants nationwide jurisdiction over
corporate antitrust defendants provided there are sufficient minimum
contacts with the United States as a whole. 15 U.S.C. § 22; See In re Fed.
Fountain, Inc., 165 F.3d 600 (8th Cir. 1999). The first clause of Section 12
outlines the venue requirements for corporate antitrust defendants; the
second clause establishes nationwide service of process. The Seventh Circuit
recently held that Section 12 is a “package deal,” and “to avail oneself of the
privilege of nationwide service of process, a plaintiff must satisfy the venue
provisions of Section 12's first clause.” KM Enterprises, Inc. v. Global
Traffic Techs., Inc., 725 F.3d 718, 730 (7th Cir. 2013). Put differently, a
plaintiff cannot rely on the standard federal venue provision, 28 U.S.C. §
1391, while claiming nationwide personal jurisdiction under the Clayton
Act. The Second Circuit and D.C. Circuit reached similar conclusions, while
the Third Circuit and Ninth Circuit interpreted the statute more broadly.
It does not appear that the Eighth Circuit has addressed whether the venue
and nationwide service provisions of Section 12 should be read together. At
least one court in the Eighth Circuit, however, appears to have reached the
same conclusion as the Seventh Circuit. See Willis Elec. Co., Ltd. v.
Polygroup Macau Ltd. (BVI), 437 F. Supp. 3d 693, 703 (D. Minn. 2020); see
also Sitzer v. Nat'l Ass'n of Realtors, Case No. 4:19-CV-00332-SRB, 2019
WL 3892873, at *2- 3 (W.D. Mo. Aug. 19, 2019) (discussing issue but
finding jurisdiction was proper under either interpretation).
Plaintiff has not addressed Section 12 or in any way tethered its
jurisdictional claims to the Clayton Act. Plaintiff certainly has not argued
that venue is proper under Section 12. Even construing Plaintiff's complaint
liberally, there is no allegation that [Defendant] transacts business “of any
5

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 6 of 12 PageID #: 373

substantial character” in this district, as required to establish venue under the
Clayton Act. United States v. Scophony Corp. of Am., 333 U.S. 795, 807
(1948).
MNG 2005, Inc. v. Paymentech, LLC, No. 4:18-CV-01155-JAR, 2020 WL
6582660, at *3 n.3 (E.D. Mo. Nov. 9, 2020).
Likewise, there are no allegations that Defendant transacts business of a
substantial character in this district, rather, the allegations claim Defendant merely
transacts business in Missouri; the Court agrees a claim of transacting business
within the entire State of Missouri fails to satisfy the requirements under the
Clayton Act.
Specific Jurisdiction
While the burden to make a prima facie showing of personal jurisdiction at
this stage of the litigation is “minimal,” conclusory allegations and speculations are
insufficient where no other allegations provide plausible factual support. See
Zazzle, Inc., 42 F.4th at 951 (requiring the pleading of sufficient facts to support a
reasonable inference that the defendant can be subjected to jurisdiction within the
state); Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d
589, 598 (8th Cir. 2011) (explaining that when a plaintiff offers only speculation or
conclusory assertions about contacts with a forum state, dismissal for lack of
personal jurisdiction is appropriate); Miller v. Nippon Carbon Co., 528 F.3d 1087,
1092 (8th Cir. 2008) (holding a “conclusory allegation is not enough to establish
6

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 7 of 12 PageID #: 374

personal jurisdiction” and that the plaintiff had “the burden of proving facts
supporting personal jurisdiction, not by the pleadings alone, but by the affidavits
and exhibits” (internal quotation marks and citation omitted)). This is true, even
though the plaintiff does not bear the ultimate burden to prove personal jurisdiction
by the preponderance of the evidence until trial or when the court holds an
evidentiary hearing on the question. Creative Calling Sols., Inc. v. LF Beauty Ltd.,
799 F.3d 975, 979 (8th Cir. 2015).
Since Plaintiff has not established personal jurisdiction under the Clayton
Act, which provides for nationwide personal jurisdiction, “the existence of
personal jurisdiction depends on the long-arm statute of the forum state and the
federal Due Process Clause.” Zazzle, Inc., 42 F.4th at 951.
Missouri's long arm-statute provides personal jurisdiction over non-resident
defendants based on “the transaction of any business within [Missouri].” Mo. Rev.
Stat. § 506.500.1. The long-arm statute is “construed broadly, such that if a
defendant commits one of the acts specified in the long-arm statute, the statute will
be interpreted ‘to provide for jurisdiction ... to the full extent permitted by the
[D]ue [P]rocess [C]lause.’ ” Hand v. Beach Ent. KC, LCC, 425 F. Supp. 3d 1096,
1106 (W.D. Mo. 2019) (quoting Viasystems, 646 F.3d at 593.)
Although Plaintiff attempts to allege specific jurisdiction, the First Amended
Complaint fails to allege that any of the subject products had anything to do with
7

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 8 of 12 PageID #: 375

Missouri. Plaintiff’s allegations are specific with regard to the litigation in New
York. Plaintiff fails to allege any of Defendant’s business locations in Missouri
have anything to do with this suit.
“Even if personal jurisdiction over a defendant is authorized by the forum
state's long-arm statute, jurisdiction can be asserted only if it comports with the
strictures of the Due Process Clause.” Viasystems, 646 F.3d at 594 (citing World–
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). “The touchstone
of the due-process analysis remains whether the defendant has sufficient
‘minimum contacts with [the forum state] such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice.’ ” Id.
(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “This
connection must be based on ‘some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum State, thus invoking
the benefits and protections of its laws.’ ” Creative Calling Sols., Inc. v. LF Beauty
Ltd., 799 F.3d 975, 980 (8th Cir. 2015) (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474-75 (1985)). “The defendant's contacts with the forum must thus
be more than ‘random, fortuitous, or attenuated,’ and must permit the defendant to
‘reasonably anticipate being haled into court there.’ ” Id. (quoting Burger King
Corp., 471 U.S. at 474-75). “In other words, ‘[t]o establish specific jurisdiction the
suit must arise out of or relate to the defendant's contacts with the forum.’ ”
8

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 9 of 12 PageID #: 376

Alexander v. Suzuki Motor of Am., Inc., No. 4:17-CV-1942-JCH, 2018 WL
3819037, at *3 (E.D. Mo. Aug. 10, 2018) (quoting Suzuki Mfg. of Am. Corp., 2017
WL 4617073, at *2).
In this circuit, the due process standard has been expressed as a
consideration of five factors: (1) the nature and quality of the contacts with the
forum state; (2) the quantity of those contacts; (3) the relationship of those contacts
with the cause of action; (4) Missouri's interest in providing a forum for its
residents; and (5) the convenience or inconvenience to the parties. Id. (quotation
omitted). “Although [e]ach defendant's contacts with the forum State must be
assessed individually, [n]aturally, the parties' relationships with each other may be
significant in evaluating their ties to the forum.” Hand v. Beach Ent. KC, LCC, 425
F. Supp. 3d 1096, 1107 (W.D. Mo. 2019) (quotations and citations omitted).
As to the due process analysis, the Eighth Circuit Court of Appeals has
explained,
“Critical to due process analysis is that the defendant's conduct and
connection with the forum state are such that he should reasonably anticipate
being haled into court there.” Kaliannan, 2 F.4th at 733 (cleaned up)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct.
2174, 85 L.Ed.2d 528 (1985)). The relevant conduct and connections for the
due process analysis depend on whether personal jurisdiction is alleged to be
general or specific. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., –––
U.S. ––––, 141 S. Ct. 1017, 1024, 209 L.Ed.2d 225 (2021). General
jurisdiction exists where a defendant is “essentially at home” in the forum
state, whereas specific jurisdiction “covers defendants less intimately
connected with a State, but only as to a narrower class of claims,” namely
those that “ ‘arise out of or relate to the defendant's contacts’ with the
9

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 10 of 12 PageID #: 377

forum.” Id. at 1024–25 (quoting Bristol-Myers Squibb Co. v. Super. Ct. of
Cal., S.F. Cnty., ––– U.S. ––––, 137 S. Ct. 1773, 1780, 198 L.Ed.2d 395
(2017)).
Zazzle, Inc., 42 F.4th at 951–52.
In this case, Plaintiff does not argue that the Court has “general” jurisdiction
over Defendant; instead, it argues that the Court has “specific” jurisdiction over
this defendant. Thus, as in Zazzle, Inc., this Court “must decide whether
[Defendant] has certain minimum contacts with the forum state and whether
[Plaintiff’s] claims ‘arise out of or relate to [Defendant’s] contacts.’ ” 42 F.4th at
952 (quoting Kaliannan, 2 F.4th at 733, in turn quoting Ford Motor, 141 S. Ct. at
1025).
Plaintiff has alleged only “on information and belief” that Defendant
operates in Missouri “on information and belief” are not sufficient, because they
are only conclusory and speculative, where no other allegations or evidence
provides plausible factual support. See Zazzle, Inc., 42 F.4th at 951 (explaining that
the plaintiff must plead sufficient facts to support a reasonable inference that the
defendant can be subjected to jurisdiction in this state); Viasystems, Inc., 646 F.3d
at 598 (explaining that speculation or conclusory assertions about contacts with a
forum state are not enough to avoid dismissal for lack of personal jurisdiction);
Miller, 528 F.3d at 1092 (holding a “conclusory allegation is not enough to

10

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 11 of 12 PageID #: 378

establish personal jurisdiction”; rather, proof of facts by evidence and affidavit is
required).
Plaintiff’s First Amended Complaint raises issues with regard to Defendant’s
actions toward it and other producers of the subject products in suits filed in other
jurisdictions. Taking the evidence in the light most favorable to Plaintiff does not
mean ignoring a lack of evidence. Nor does it mean speculating and engaging in
conjecture as to what Plaintiff is or might be alleging.
Plaintiff argues that if the Court concludes its arguments do not establish
personal jurisdiction, then the Court should allow limited jurisdictional discovery
prior to dismissing this case. In Viasystems, Inc., the Eighth Circuit Court of
Appeals concluded,
Viasystems’ assertion that jurisdictional discovery “would likely” reveal
these facts [concerning the relationship between a company and its
distributors] is entirely speculative, and “[w]hen a plaintiff offers only
speculation or conclusory assertions about contacts with a forum state, a
court is within its discretion in denying jurisdictional discovery.” Dever v.
Hentzen Coatings, Inc., 380 F.3d 1070, 1074 n. 1 (8th Cir. 2004) (quoting
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402
(4th Cir. 2003)). Accordingly, the district court did not abuse its discretion in
denying Viasystems’ motion for jurisdictional discovery.
Viasystems, Inc., 646 F.3d at 598. Plaintiff’s assertion that discovery might reveal
facts about the nature of Defendant’s contacts in Missouri is likewise entirely
speculative and conclusory. Id.
Conclusion
11

Case: 4:21-cv-01487-HEA Doc. #: 78 Filed: 11/21/22 Page: 12 of 12 PageID #: 379

The Court concludes that Plaintiff has failed to make the required prima
facie showing that Defendant’s conduct and connection with this state are such that
Defendant should reasonably have anticipated being haled into court here. Zazzle,
Inc., 42 F.4th at 951 (explaining that this reasonable anticipation is “[c]ritical to
due process analysis” of personal jurisdiction). The Court concludes further that
Plaintiff’s request for jurisdictional discovery prior to dismissal for lack of
personal jurisdiction must be denied. Therefore, Defendant’s Motion to Dismiss
the First Amended Complaint for lack of personal jurisdiction is granted. Such
dismissal is without prejudice, however, because Plaintiff may be able to bring its
claims against Defendant in a court that does have personal jurisdiction over that it.
Accordingly,
IT IS HEREBY ORDERED that Defendant’ s Motion to Dismiss Pursuant
to Fed.R.Civ.P. 12(b)(2) and 12(b)(6), or in the Alternative, to Stay or Transfer,
[Doc. No. 45], is granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Conduct
Discovery Limited to the Issue of Personal Jurisdiction, [Doc. No. 55] is denied.
Dated this 21st day of November, 2022.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
12