Perrigo Company et al v. Merial Limited et al

Filing 96

MEMORANDUM AND ORDER - The Defendants' Motion to Dismiss or, in the Alternative, to Transfer Plaintiffs' Amended Complaint (filing 24 ) is granted in part and denied in part. The plaintiffs are directed to advise the Court, on or befor e April 21, 2015, whether they oppose the defendants' motion to transfer this case to the Northern District of Georgia. The Clerk of the Court is directed to set a case management deadline of April 21, 2015, with the following docket text: "Check for transfer of case or dismissal of party Merial SAS." Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PERRIGO COMPANY, et al.,
Plaintiffs,

8:14-CV-403

vs.
MEMORANDUM AND ORDER
MERIAL LIMITED, doing business as
MERIAL LLC, and MERIAL SAS,
Defendants.
This matter is before the Court on the Defendants' Motion to Dismiss
or, in the Alternative, to Transfer Plaintiffs' Amended Complaint (filing 24).
The defendants move to dismiss the plaintiffs' complaint for lack of personal
jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), or in the alternative to
transfer the case to the Northern District of Georgia, pursuant to 28 U.S.C. §
1404. The Court will grant the defendants' motion to dismiss, in part, and
deny it in part, and defer ruling on the defendants' alternative request to
transfer the case to Georgia.
BACKGROUND
The defendants in this case are Merial Limited d/b/a Merial LLC and
Merial SAS (collectively, Merial). Merial Limited is a company limited by
shares registered in England and Wales. Filing 26-9 at 2; see generally
Companies Act, 2006, c. 46, § 3 (U.K.). Merial Limited is domesticated in the
State of Delaware as Merial LLC. Filing 26-9 at 2; see generally Del. Code
Ann. Tit. 6, § 18-212. Merial LLC has a registered agent in Nebraska for
service of process. Filing 56-10 at 1-3. Merial SAS is a French société par
actions simplifiée. Filing 26-9 at 3.
Merial makes and sells flea and tick protection for household pets.
Among other things, Merial makes "Frontline" products which are covered in
part by a U.S. Patent that Merial holds (the '329 Patent). Filing 23 at 3. The
plaintiffs, Perrigo Company, Sergeant's Pet Care Products, Velcera, and
Fidopharm (collectively, Perrigo), are also in the business of flea and tick
protection for household pets, and Merial and Velcera were involved in
extensive litigation including disputes over the '329 Patent and what Merial
said were Velcera's attempts to infringe it. Filing 23 at 4. But in August 2012,
they settled their disputes with the Settlement Agreement that is the basis of

the current lawsuit. Filing 23 at 4-5. Velcera was acquired by Perrigo after
the settlement was reached, and Perrigo assumed Velcera's rights and
obligations under the agreement. Filing 23 at 5-6.
The Settlement Agreement permitted Perrigo to enter the over-thecounter market with its products no later than November 30, 2014. Filing 23
at 4. The '329 Patent will expire on August 5, 2016, and permitting Perrigo to
enter the market before then would provide Perrigo with a head start over
other competitors in the over-the-counter market. See filing 23 at 3, 5.
Perrigo could also have entered the market earlier, if Merial notified Perrigo
that it had granted another competitor a license to the '329 Patent—which
Merial was, pursuant to the Settlement Agreement, only permitted to do in
order to settle litigation that threatened the validity of the '329 Patent. Filing
23 at 4. Merial was required to provide Perrigo with notice if Merial offered to
grant, or actually granted, a license to enter or remain in the over-thecounter market. Filing 23 at 4, 8. But absent those conditions—or the actual
invalidity of the '329 Patent—Merial was expected to enforce the '329 Patent
against other companies, and Perrigo was expected to pay Merial for the
privilege. Filing 23 at 4-5, 12.
In March 2014, Perrigo became aware of settlement discussions in a
Georgia lawsuit between Merial, Horizon Valley Generics, Inc., and Ceva
Sante Animale, S.A., that involved the '329 Patent. Filing 23 at 6-7. Perrigo
contacted Merial, but Merial did not provide notice, pursuant to the
Settlement Agreement, of settling any other litigation. Filing 23 at 6. The
Georgia litigation was dismissed in April. Filing 23 at 7. Nonetheless, Perrigo
continued to hear of the impending launch of a competing product. Filing 23
at 8-10. And eventually, Merial did notify Perrigo that a third-party license
had been offered and granted. Filing 23 at 10-11. Perrigo sued Merial for
alleged breach of the Settlement Agreement. Filing 23. Merial filed a motion
to dismiss asserting a lack of personal jurisdiction. Filing 24.
STANDARD OF REVIEW
When jurisdiction is challenged on a pretrial motion to dismiss, the
nonmoving party need only make a prima facie showing of jurisdiction.
Pangaea, Inc. v. Flying Burrito LLC, 647 F.3d 741, 745 (8th Cir. 2011). The
evidence is viewed in the light most favorable to the plaintiff. Viasystems, Inc.
v. EBM-Papst St. Georgen GmbH & Co., 646 F.3d 589, 592 (8th Cir. 2011).
Nonetheless, if the defendant controverts or denies jurisdiction, the plaintiff
still carries the burden of proof. See, Dairy Farmers of Am., Inc. v. Bassett &
Walker Int'l, Inc., 702 F.3d 472, 475 (8th Cir. 2012); Viasystems, 646 F.3d at
592; Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607 F.3d 515, 518 (8th Cir.
2010); Miller v. Nippon Carbon Co., 528 F.3d 1087, 1090 (8th Cir. 2008). The
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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. Dairy Farmers, 702 F.3d at 475; Miller, 528 F.3d at 1090; Coen v.
Coen, 509 F.3d 900, 904-05 (8th Cir. 2007).
DISCUSSION
Merial argues that the Court lacks personal jurisdiction because it
lacks the "contacts, ties, or relations" with Nebraska necessary to satisfy due
process. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). In order
to satisfy due process, a defendant must have minimum contacts with the
forum state such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice. Pangaea, 647 F.3d at 745; see also
Dairy Farmers, 702 F.3d at 477. The fundamental inquiry is whether the
defendant has purposefully availed itself of the benefits and protections of the
forum state to such a degree that it should reasonably anticipate being haled
into court there. Viasystems, 646 F.3d at 594; see also Dairy Farmers, 702
F.3d at 477. Purposeful availment is required to ensure that a defendant will
not be haled into a jurisdiction solely as a result of random, fortuitous, or
attenuated contacts, or the unilateral activity of another party or a third
person. Stanton v. St. Jude Med., Inc., 340 F.3d 690, 693-94 (8th Cir. 2003).
Jurisdiction is proper, however, where the contacts proximately result from
actions by the defendant itself that create a substantial connection with the
forum state. Id. at 694.
The minimum contacts necessary for due process may be the basis for
either "general" or "specific" jurisdiction. Dairy Farmers, 702 F.3d at 475;
Johnson v. Arden, 614 F.3d 785, 794 (8th Cir. 2010). A court obtains general
jurisdiction against a defendant who has "continuous and systematic"
contacts with the forum state, even if the injuries at issue in the lawsuit did
not arise out of the defendant's activities directed at the forum. Id. Specific
jurisdiction over a defendant, on the other hand, is exercised when a state
asserts personal jurisdiction over a nonresident defendant that has
purposefully availed itself of the privilege of conducting business in the forum
in a suit arising out of or related to the defendant's contacts with the forum.
See, Pangaea, 647 F.3d at 745-46; Johnson, 614 F.3d at 794-95. It is essential
in each case that there be 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. Dairy Farmers, 702
F.3d at 477; see also Hanson v. Denckla, 357 U.S. 235, 253 (1958).
Merial contends that specific jurisdiction does not exist because the
events giving rise to this litigation arose out of contacts with Georgia, not
Nebraska. Filing 33 at 8-10. Perrigo, on the other hand, contends that this
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litigation arises out of an agreement that required Merial to direct its
performance at the plaintiffs in Nebraska. Filing 59 at 17. Merial also
contends that general personal jurisdiction does not exist because none of the
Merial entities is either incorporated in or has its principal place of business
in Nebraska, and they have minimal contacts with the state. Filing 33 at 6-8.
Perrigo contends, to the contrary, that Merial's products are manufactured by
Perrigo in Nebraska, that Merial has contracted with other Nebraska
businesses, and that Merial has sued in Nebraska courts. Filing 59 at 19-20.
And Perrigo contends that Merial has consented to jurisdiction in Nebraska.
The Court will address each contention in turn.
SPECIFIC JURISDICTION
As just noted, specific jurisdiction over a defendant is exercised when a
state asserts personal jurisdiction over a nonresident defendant that has
purposefully availed itself of the privilege of conducting business in the forum
in a suit arising out of or related to the defendant's contacts with the forum.
See, Pangaea, 647 F.3d at 745-46; Johnson, 614 F.3d at 794-95. In a contract
case, the Court is to evaluate prior negotiations and contemplated future
consequences, along with the terms of the contract and the parties' actual
course of dealing to determine whether the defendant purposefully
established minimum contacts within the forum. Dairy Farmers, 702 F.3d at
477; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985). And
the Eighth Circuit has set forth a five-part test for measuring a defendant's
contacts with a forum state: (1) the nature and quality of the contacts with
the forum state, (2) the quantity of those contacts, (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. Dairy
Farmers, 702 F.3d at 477; Wells Dairy, 607 F.3d at 518. The third factor
distinguishes whether the jurisdiction is general or specific. Johnson, 614
F.3d at 794. The first three factors are primary factors, and the remaining
two are secondary. Id. And a court is to look at all the factors in the aggregate
and examine the totality of the circumstances in determining personal
jurisdiction. Id.; see Dairy Farmers, 702 F.3d at 477.
Perrigo's argument for specific jurisdiction is primarily based on
Merial's communications directed at Perrigo in Nebraska regarding
performance of the Settlement Agreement. Perrigo and Merial sent
correspondence back and forth regarding various aspects of the Settlement
Agreement. Filing 20-2 at 4-14. And Perrigo performed its obligations under
the Settlement Agreement from Nebraska, including payments to Merial.
Filing 20-2 at 10.

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It is, however, well established that the "'use of arteries of interstate
mail, telephone, railway and banking facilities is insufficient, standing alone,
to satisfy due process.'" Wells Dairy, 607 F.3d at 519 (quoting Mountaire
Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 656 (8th Cir. 1982)); see also,
e.g., Dairy Farmers, 702 F.3d at 476-77; Viasystems, 646 F.3d at 594;
Institutional Feed Mktg. Assocs., Ltd. v. Golden State Strawberries, Inc., 747
F.2d 448, 456 (8th Cir. 1984); Aaron Ferer & Sons Co. v. Atlas Scrap Iron &
Metal Co., 558 F.2d 450, 453, 455 (8th Cir. 1977). "Indeed, these isolated
connections are just the sort of random, fortuitous, and attenuated contacts
that cannot justify the exercise of personal jurisdiction." Viasystems, 646 F.3d
at 594. And entering into a contract with a forum resident, standing alone,
does not provide the requisite contacts between a nonresident defendant and
the forum state either, because it is the contacts between the defendant and
the forum state—not a forum resident—that are of interest. See Mountaire
Feeds, 677 F.2d at 655; see also, Golden State Strawberries, 747 F.2d at 456;
Aaron Ferer & Sons, 558 F.2d at 455 n.6.
For instance, in Dairy Farmers, 702 F.3d at 474, a Missouri cooperative
sued a Canadian commodities broker in Missouri. Applying its five-part test,
the Eighth Circuit found that due process did not permit that exercise of
jurisdiction. Dairy Farmers, 702 F.3d at 479. The Eighth Circuit found the
nature and quality of the defendant's contacts with Missouri to be lacking,
despite the fact that the defendant sought and received credit from a
company in Missouri, and solicited the plaintiff's business knowing that it
had a Missouri headquarters. Id. at 478. The quantity of the contacts—
scattered emails and telephone calls—also weighed against jurisdiction. Id.
at 479. The inconvenience to the parties, the Eighth Circuit said, was
balanced: litigation in Missouri likely inconvenienced the defendant, while
litigation elsewhere likely inconvenienced the plaintiff. Id. And while
Missouri had an interest in providing a forum for a company headquartered
there, that did not overcome the insufficiency of the defendant's contacts with
Missouri. Id.
Likewise, in Mountaire Feeds, 677 F.2d at 652, an Arkansas
manufacturer sued a foreign corporation in Arkansas, based on the
defendant's refusal to pay for the last few shipments the plaintiff had sent
the defendant. The Eighth Circuit found the defendant's contacts with
Arkansas to be insufficient. Id. The defendant had ordered from the plaintiff
by telephone, and confirmed the purchase by letter; the defendant had also
provided the plaintiff with a letter of credit presented through an Arkansas
bank. Id. And the parties had exchanged other communications concerning
packaging, labeling, and shipping. Id. But the Eighth Circuit found the
parties' correspondence, communications, and payment in Arkansas to be
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insufficient minimum contacts to support the exercise of jurisdiction. Id. at
655-56; see also Viasystems, 646 F.3d 589.
Aaron Ferer & Sons, 558 F.2d 450, is to the same effect. In that case,
the Nebraska plaintiff purchased goods from the out-of-state defendants for
resale to third parties, but alleged that the defendants had either diverted
the goods or misappropriated the proceeds. Id. at 452 n.3. The plaintiff relied
on the following contacts between the defendants and Nebraska:
numerous letters and telephone calls between [plaintiff]'s office in
Omaha, Nebraska, and [defendants]' offices in various other
states; payments prepared by [plaintiff] in Omaha and drawn on
[plaintiff]'s account at an Omaha bank; contracts prepared by
[plaintiff] in Omaha, mailed to [defendants] in states outside
Nebraska, acknowledged by [defendants], and mailed back to
[plaintiff] in Omaha; and sales orders prepared by [certain
defendants] at their offices outside Nebraska, mailed to [plaintiff]
in Omaha, acknowledged by [plaintiff], and returned by mail to
[defendants].
Id. at 452-53. But the Eighth Circuit found those facts insufficient. Id. at 454.
The letters and telephone calls, the court observed, "in this purely
commercial setting did not supply the necessary minimal contact." Id. at 455.
The Court finds that authority to be controlling here. The nature and
quality, and quantity, of Merial's connections to Nebraska with respect to the
Settlement Agreement are, if anything, even more attenuated. It is important
to remember that the relationship between the defendant and the forum
"must arise out of contacts that the 'defendant himself' creates with the
forum State." Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (quoting Burger
King, 471 U.S. at 475) (emphasis in original). And the "'minimum contacts'
analysis looks to the defendant's contacts with the forum State itself, not the
defendant's contacts with persons who reside there." Id. So,
the plaintiff cannot be the only link between the defendant and
the forum. Rather, it is the defendant's conduct that must form
the necessary connection with the forum State that is the basis
for its jurisdiction over him. To be sure, a defendant's contacts
with the forum State may be intertwined with his transactions or
interactions with the plaintiff or other parties. But a defendant's
relationship with a plaintiff or third party, standing alone, is an
insufficient basis for jurisdiction. Due process requires that a
defendant be haled into court in a forum State based on his own

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affiliation with the State, not based on the "random, fortuitous, or
attenuated" contacts he makes by interacting with other persons
affiliated with the State.
Id. at 1122-23 (citations omitted).
The rest of the Eighth Circuit's five-part test does little to help Perrigo.
Admittedly, Merial's connections with Nebraska are related to Perrigo's claim
for relief. And Nebraska certainly has an interest in providing a forum for its
corporations, although that interest is attenuated in this case: for instance,
tort cases involve interests of the state not present in contract cases. Aaron
Ferer & Sons, 558 F.2d at 455 n.7. The inconvenience to the parties does not
favor one side or the other; as in Dairy Farmers, 702 F.3d at 479, either party
is likely to be inconvenienced outside its own state. And "[d]ue process limits
on the State's adjudicative authority principally protect the liberty of the
nonresident defendant—not the convenience of plaintiffs or third parties."
Walden, 134 S. Ct. at 1222.
On balance, while there are factors weighing in favor of jurisdiction,
the Court finds that those factors do not overcome the insufficiency of
Merial's contacts with Nebraska. See Dairy Farmers, 702 F.3d at 479.
Specific jurisdiction is not appropriate here.
GENERAL JURISDICTION
As noted above, a court obtains general jurisdiction against a defendant
who has "continuous and systematic" contacts with the forum state, even if
the injuries at issue in the lawsuit did not arise out of the defendant's
activities directed at the forum. Id. at 475. But the bar for general
jurisdiction is high. A court may only "'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.'"
Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014) (quoting Goodyear Dunlop
Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)).
Perrigo points out that in addition to the contacts set forth above,
Merial LLC is registered to do business in Nebraska. Filing 56-10 at 1-3.
(More on that a bit later.) Merial owned property in Nebraska through a
former subsidiary. Filings 56-6 to 56-8. Merial has sponsored medical
research that was conducted in Nebraska. Filings 56-12 to 56-17; filing 56-22.
Merial has sent goods and services in and out of Nebraska. Filing 56-11;
filing 56-18. Merial has purchased products made by Perrigo, and paid
Perrigo for them in Nebraska. Filing 57-1. And Merial has on at least two
occasions sued Nebraska residents in Nebraska court. Filing 56-2; filing 56-3.

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But a continuous activity of some sort within a state is not enough to
support the demand that the corporation be amenable to suits unrelated to
that activity. Goodyear, 131 S. Ct. at 2856 (citing Int'l Shoe, 326 U.S. at 318).
For instance, in Helicopteros Nacionales de Colombia, S.A. v. Hall, the
defendant's contacts with the forum state consisted of sending its chief
executive officer there to negotiate a contract, accepting into its New York
bank account checks drawn on a forum bank, purchasing equipment and
training services from a company in the forum state, and sending personnel
there for training. 466 U.S. 408, 416 (1984). Those contacts, the Supreme
Court explained, were insufficient to support the exercise of jurisdiction over
a claim that neither arose out of nor related to the defendant's activities in
the forum. Id. at 415-416.
Merial's contacts with Nebraska are comparable here, and yield the
same result, particularly in light of the impressive scope of Merial's
worldwide enterprises. "The general jurisdiction inquiry," the Supreme Court
has explained, "does not focus solely on the magnitude of the defendant's instate contacts. General jurisdiction instead calls for an appraisal of a
corporation's activities in their entirety, nationwide and worldwide. A
corporation that operates in many places can scarcely be deemed at home in
all of them." Daimler, 134 S. Ct. at 762 n.20 (citations and quotations
omitted). Only a limited set of affiliations with a forum will render a
defendant amenable to all-purpose jurisdiction there. Daimler, 134 S. Ct. at
760. "For an individual, the paradigm forum for the exercise of general
jurisdiction is the individual's domicile; for a corporation, it is an equivalent
place, one in which the corporation is fairly regarded as at home." Goodyear,
131 S. Ct. at 2853-54. General jurisdiction requires affiliations so continuous
and systematic as to render the foreign corporation essentially at home in the
forum state, i.e., comparable to a domestic enterprise in that State. Daimler,
134 S. Ct. at 758 n.11.
It is apparent, when Merial's nationwide and worldwide activities are
considered, that Merial is not at home in Nebraska. The Court cannot
exercise general jurisdiction over Merial.
IMPLIED CONSENT TO JURISDICTION
As previously noted, Merial LLC is registered to do business in
Nebraska, and has appointed an agent to receive service of process. Filing 5610 at 1-3. Perrigo argues that as a result, Merial has consented to suit in
Nebraska. Filing 59 at 11-15. At least as to Merial LLC, the Court agrees.
Because the personal jurisdiction requirement is a waivable right,
there are a variety of legal arrangements by which a litigant may give

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express or implied consent to the personal jurisdiction of the Court. Burger
King, 471 U.S. at 473 n.14.
Consent is the other traditional basis of jurisdiction, existing
independently of long-arm statutes. Personal jurisdiction, unlike
subject-matter jurisdiction, is primarily concerned with fairness
to individual parties. Objections to jurisdiction over the person
may be waived, either expressly or by not asserting them in a
timely manner. A defendant may voluntarily consent or submit to
the jurisdiction of a court which otherwise would not have
jurisdiction over it.
Knowlton v. Allied Van Lines, 900 F.2d 1196, 1199 (8th Cir. 1990). And "[o]ne
of the most solidly established ways of giving such consent is to designate an
agent for service of process within the State." Id.; see Bendix Autolite Corp. v.
Midwesco Enters, Inc., 486 U.S. 888, 892 (1988).
Accordingly, the Eighth Circuit has repeatedly held that a state's
requirement that a foreign corporation submit to the jurisdiction of that
state's courts in order to qualify to do business does not need to be tested
under the due process "minimum contacts" analysis set forth in Int'l Shoe;
instead, appointment of an agent for service of process constitutes consent to
jurisdiction, and the Due Process Clause is satisfied. Sondergard v. Miles,
Inc., 985 F.2d 1389, 1396 (8th Cir. 1993); Ytuarte v. Gruner + Jahr Printing
& Publ'g, 935 F.2d 971, 973 (8th Cir. 1991); Knowlton, 900 F.2d at 11991200; see Bendix, 486 U.S. at 892; see also, e.g., Bane v. Netlink, Inc., 925 F.2d
637, 640 (3d Cir. 1991); Holloway v. Wright & Morrissey, Inc., 739 F.2d 695,
697 (1st Cir. 1984); Merriman v. Crompton Corp., 146 P.3d 162, 170-71, 17477 (Kan. 2006); cf., Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165,
170 (1939); Pa. Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93,
94-95 (1917). And it is equally clear that designating an agent upon whom
process may be served operates, under Nebraska law, as a consent to
jurisdiction. Mittelstadt v. Rouzer, 328 N.W.2d 467, 469 (Neb. 1982); see
Starbucks Corp. v. S.D. Network LLC, No. 8:11-cv-237, 2011 WL 6399550, at
*2-3 (D. Neb. Dec. 20, 2011).
Merial contends that the Supreme Court's recent decision in Daimler is
inconsistent with that rule. The Court is not convinced. Merial seems to
believe that the question is whether registering to do business in Nebraska is
sufficient to establish general jurisdiction. See filing 71 at 9. But the question
is whether Merial LLC has, by registering, consented to suit in Nebraska.
Daimler only speaks to whether general jurisdiction can be appropriately
exercised over a foreign corporation that has not consented to suit in the

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forum. See Daimler, 134 S. Ct. at 755-56; see also Gucci Am., Inc. v. Weixing
Li, 768 F.3d 122, 136 n.15. It does nothing to affect the long-standing
principle that a defendant may consent to personal jurisdiction. See Gucci,
768 F.3d at 136 n.15; see also, Otsuka Pharm. Co., Ltd. v. Mylan Inc., No. 144508, 2015 WL 1305764, at *10-11 (D.N.J. Mar. 23, 2015); Forest Labs., Inc.
v. Amneal Pharm. LLC, No. CV-14-508, 2015 WL 880599, at *13-14 (D. Del.
Feb. 26, 2015). Daimler circumscribes the extent to which a defendant can be
compelled to submit to general jurisdiction, but it does nothing to limit the
defendant's capacity to consent to jurisdiction—and therefore, it does nothing
to upset well-settled law regarding what acts may operate to imply consent.
See, Otsuka, 2015 WL 1305764, at *10; Forest Labs., 2015 WL 880599, at *1214.
Furthermore, as far as this Court is concerned, it is the Eighth Circuit's
prerogative to overrule its own decisions. See, Rodriquez de Quijas v.
Shearson/Am. Express, 490 U.S. 477, 484 (1989); Hood v. United States, 342
F.3d 861, 864 (8th Cir. 2003); Okruhlik v. Univ. of Ark., 255 F.3d 615, 622
(8th Cir. 2001). And accepting Merial's argument would also require the
Court to conclude that Daimler, sub silentio, abrogated the Supreme Court's
reasoning in cases like Pa. Fire, Neirbo, and Bendix—and it is even more
clear that the Supreme Court has reserved to itself the prerogative of
overruling its own decisions. See Rodriguez de Quijas, 490 U.S. at 484. The
Court remains constrained by the Eighth Circuit's decisions in Sondergard,
Ytuarte, and Knowlton, and pursuant to that authority concludes that Merial
LLC has consented to personal jurisdiction in Nebraska.
But that does not end the Court's inquiry, because as Merial points out,
Merial LLC may have registered in Nebraska, but Merial SAS has not. Filing
71 at 9. The Court is aware of no authority suggesting that Merial LLC's
consent to jurisdiction is imputable to Merial SAS simply by virtue of their
corporate affiliation.1 And as explained above, Merial SAS does not have the
contacts with Nebraska necessary to support either specific or general
jurisdiction. So, the Court will grant Merial's motion to dismiss with respect
to Merial SAS.
Merial also tries to argue that "only the corporate entities Merial
Limited and Merial SAS are defendants in this action" and that "[n]either
Merial Limited nor Merial SAS have registered to do business in Nebraska."
Perhaps that might be the case if Merial LLC was so dominated by Merial SAS as to be its
alter ego—essentially, piercing the corporate veil. See Patin v. Thoroughbred Power Boats
Inc., 294 F.3d 640, 653-55 (5th Cir. 2002) (collecting cases); see also Miller v. Tony & Susan
Alamo Found., 924 F.2d 143, 148 (8th Cir. 1991); cf., Viasystems, 646 F.3d at 596; Lakota
Girl Scout Council, Inc. v. Havey Fund-Raising Mgmt., Inc., 519 F.2d 634, 638 (8th Cir.
1975). But there is no evidence to establish that, and Perrigo does not advance the theory.
1

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Filing 71 at 9. The Court finds no merit to the claim that Merial Limited is
not a party here: Merial admits that Merial Limited is domesticated in
Delaware as Merial LLC, which means Merial Limited and Merial LLC are
the same entity.
When a non-United States entity has become domesticated as a
limited liability company pursuant to [Del. Code Ann. Tit. 6, § 18212] . . . the limited liability company shall be deemed to be the
same entity as the domesticating non-United States entity and
the domestication shall constitute a continuation of the existence
of the domesticating non-United States entity in the form of a
domestic limited liability company.
Del. Code Ann. Tit. 6, § 18-212(i). It is not clear to the Court on what basis
Merial can suggest otherwise.
Nonetheless, Merial SAS has neither consented to jurisdiction in
Nebraska nor subjected itself to personal jurisdiction by virtue of its contacts
with Nebraska.
CONCLUSION
For the reasons explained above, the Court finds that neither Merial
entity can be subjected to specific or general jurisdiction in Nebraska. Merial
SAS has not consented to jurisdiction, but Merial LLC has. So, the Court will
grant Merial's motion to dismiss in part, but deny it in part.
What remains is Merial's alternative request to transfer this case to the
Northern District of Georgia. Perrigo has opposed that request, but the Court
will give Perrigo an opportunity to reconsider its opposition in light of the
Court's ruling on Merial's motion to dismiss. Perrigo may continue this case
in Nebraska against Merial LLC. But Perrigo may now prefer to litigate in
Georgia, where Merial has implicitly conceded that both Merial entities are
subject to jurisdiction.2 And that would also remove any cloud over
jurisdiction cast by how the Eighth Circuit might, on appeal, evaluate its
registration-equals-consent rule in light of Daimler.
So, the Court will defer dismissing Merial SAS as a party for 14 days.
The Court will direct Perrigo to advise the Court, on or before April 21, 2015,

It has been held that moving to transfer a case to a different district waives any objection
to jurisdiction in that district. See, Aziz v. Leferve, 830 F.2d 184, 186 (11th Cir. 1987); Liaw
Su Teng v. Shaarup Shipping Co., 743 F.2d 1140, 1149-50 (5th Cir. 1984), overruled on
other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir. 1987);
Epperson v. Entm't Express, 338 F. Supp. 2d 328, 334-35 (D. Conn. 2004).
2

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whether it intends to proceed in Nebraska or whether it withdraws its
opposition to transferring this case to the Northern District of Georgia.3
IT IS ORDERED:
1.

The Defendants' Motion to Dismiss or, in the Alternative,
to Transfer Plaintiffs' Amended Complaint (filing 24) is
granted in part and denied in part.

2.

The plaintiffs are directed to advise the Court, on or before
April 21, 2015, whether they oppose the defendants' motion
to transfer this case to the Northern District of Georgia.

3.

The Clerk of the Court is directed to set a case
management deadline of April 21, 2015, with the following
docket text: "Check for transfer of case or dismissal of party
Merial SAS."

Dated this 7th day of April, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

That should not be understood as denying Merial's motion for change of venue should
Perrigo continue to oppose it. Should Perrigo continue to resist transfer, Merial's motion for
change of venue will be referred to the United States Magistrate Judge for determination
pursuant to 28 U.S.C. § 1404(a).
3

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