Trisvan v. Heyman et al
MEMORANDUM & ORDER: The Court grants Defendants' motions to dismiss. Plaintiff is granted leave to file an amended complaint within 30 days of this Memorandum and Order. SO ORDERED by Judge Margo K. Brodie, on 3/24/2017. (Copy of this Order and the attached copies of all unpublished decisions cited herein sent to pro se Plaintiff.) Motions 23 and 25 terminated. (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------NOT FOR PUBLICATION
MEMORANDUM & ORDER
TOM HEYMAN, ALEX GORSKY, JOAQUIN
DUARTO, SIR PHILLIP HAMPTON and SIR
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff John Trisvan, proceeding pro se, commenced the above-captioned action against
Defendants Tom Heyman, Alex Gorsky, Joaquin Duarto, Sir Phillip Hampton and Sir Andrew
Witty, alleging that Defendants’ companies1 manufactured pharmaceutical drugs that caused
Plaintiff liver damage, hypertension, cirrhosis and weight gain, and the companies failed to
provide warnings of these effects.2 (Compl., Docket Entry No. 1.) Defendants Hampton and
Witty, executives for Glaxo Smith Kline (“GSK”) PLC (the “GSK Defendants”), move to
dismiss the Complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal
Rules of Civil Procedure and for failure to state a claim upon which relief may be granted
Plaintiff has not named the companies as defendants in this action. (See Compl.)
While Plaintiff has not alleged that Defendants’ actions violated any specific laws, (see
generally Compl.), the Court interprets the Complaint to raise claims that Defendants’ actions
violated New York State tort law. See In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 725
F.3d 65, 96 (2d Cir. 2013) (holding that failure-to-warn claims are state law torts); see also Wiley
v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (holding that courts must liberally construe papers
submitted by pro se litigants “to raise the strongest arguments they suggest”).
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (GSK Defs. Mot. to Dismiss
(“GSK Defs. Mot.”), Docket Entry No. 23.) Defendants Heyman, Gorsky and Duarto,
executives for Johnson & Johnson (the “Johnson Defendants”), separately move to dismiss the
Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. (Johnson Defs. Mot. to Dismiss (“Johnson Defs.
Mot.”), Docket Entry No. 25.) For the reasons discussed below, the Court grants the motions to
dismiss. Plaintiff is granted leave to amend the Complaint.
For the purpose of this Memorandum and Order, the Court assumes the truth of the facts
in the Complaint. In 2001, Plaintiff was prescribed Risperdal and Wellbutrin by his psychiatrist
after the psychiatrist diagnosed him with “depression” and “psychosis.” (Compl. 3.) Allegedly
as a result of taking the medications, Plaintiff gained approximately 100 pounds and by 2003,
developed hypertension. (Id.) In September of 2015, Plaintiff’s physician conducted an
ultrasound and discovered that Plaintiff had an “enlarged liver” and “fatty liver disease.” (Id.)
The physician informed Plaintiff that the Risperdal and Wellbutrin prescriptions may have
caused his liver problems. (Id.) Plaintiff was never informed about the potential side effects he
suffered from taking Risperdal and Wellbutrin. (Id.)
Johnson & Johnson’s wholly owned subsidiary, Janssen Pharmaceuticals, manufactured
Risperdal, and Johnson & Johnson distributed it. (Id.) Heyman is the President of Johnson &
Johnson’s development division and the Chief Executive Officer (“CEO”) of Janssen
Pharmaceuticals, Gorsky is the Chairman and CEO of Johnson & Johnson and Duarto is the
Worldwide Chairman of Johnson & Johnson’s pharmaceutical division. (Id.) All three men are
based in Johnson & Johnson’s offices in New Jersey. (Id. at 2.) Although Plaintiff alleges that
GSK PLC manufactures and distributes Wellbutrin, (id. at 4), Wellbutrin is manufactured and
distributed by GSK LLC, a wholly owned subsidiary of GSK PLC that is based in Philadelphia,
Pennsylvania.3 Witty and Hampton are the CEO and Chairman, respectively, of GSK PLC,
which is based in Brentford, United Kingdom.4 Both Witty and Hampton are based in the United
See Company Overview of GlaxoSmithKline LLC, http://www.bloomberg.com/researc
h/stocks/private/snapshot.asp?privcapId=24082353 (last visited March 24, 2017)
(“GlaxoSmithKline LLC . . . was incorporated in 1929 and is based in Philadelphia,
Pennsylvania . . . . GlaxoSmithKline LLC operates as a subsidiary of GlaxoSmithKline PLC.”);
Department of Health and Human Services, Center for Drug Evaluation and Research, Approval
Package for Wellbutrin and Wellbutrin SR, at 9 (Dec. 23, 2013) (addressing a letter regarding the
center’s research on Wellbutrin to “GlaxoSmithKline LLC” located at “5 Crescent Drive”
in “Philadelphia, PA”), http://www.accessdata.fda.gov/drugsatfda_docs/nda/2013/018644Orig1s
046.pdf); see also U.S. National Library of Medicine, Wellbutrin SR (Apr. 27, 2016) (noting
that Wellbutrin is made by GSK LLC), https://dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?seti
d=cbc8c074-f080-4489-a5ae-207b5fadeba3; Drugs.com, Wellbutrin SR
https://www.drugs.com/imprints/wellbutrin-sr-150-1055.html (last visited Mar. 22, 2017) (noting
that Wellbutrin is made by GSK LLC). The Court may consider this material, as well as the
materials in footnotes 4 and 5 infra, for the purposes of determining whether the Court has
personal jurisdiction over Witty and Hampton because the materials are judicially noticeable, i.e.
“not subject to reasonable dispute.” See United States v. Bari, 559 F.3d 180–81 (2d Cir. 2010)
(affirming a district court’s decision where the district court had taken judicial notice of and
relied on information from sales websites); see also Dorchester Fin. Sec., Inc. v. Banco BRJ,
S.A., 722 F.3d 81, 84 (2d Cir. 2013) (noting that “in deciding a pretrial motion to dismiss for lack
of personal jurisdiction a district court has considerable procedural leeway” and may consider
material outside the pleadings); Swaitowksi v. Citibank, 446 F. App’x 360, 360–61 (2d Cir.
2011) (holding that a court may rely on judicially noticeable documents in determining whether
it has jurisdiction).
See Company Overview of GlaxoSmithKline PLC, http://www.bloomberg.com/researc
h/stocks/private/snapshot.asp?privcapId=275442 (last visited Mar. 24, 2017).
See Biography of Sir Andrew Witty, http://www.gsk.com/en-gb/about-us/corporateexecutive-team/sir-andrew-witty/ (last visited Mar. 24, 2017) (noting that Witty is the CEO of
GSK PLC which is based in the United Kingdom); Biography of Sir Philip Hamilton,
http://www.gsk.com/en-gb/about-us/board-of-directors/sir-philip-hampton/ (last visited Mar. 24,
2017) (noting that Hampton is on the board of directors for GSK PLC, which is based in the
Plaintiff alleges that Defendants knew that Risperdal and Wellbutrin were unsafe but
nevertheless continued to allow the medication to be sold and distributed and failed to warn
Plaintiff of the potential side effects he eventually suffered. (Id.)
Standard of review
On a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure, “[a] plaintiff bears the burden of demonstrating personal
jurisdiction over a person or entity against whom it seeks to bring suit.” Troma Entm’t, Inc. v.
Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (citing Penguin Grp. (USA) Inc. v.
Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010)); see also Thackurdeen v. Duke Univ., 660 F. App’x
43, 44–45 (2d Cir. 2016) (“In opposing a motion to dismiss for lack of personal jurisdiction,
plaintiffs bear the burden of establishing that the court has jurisdiction over defendants.”
(citations, alterations and internal quotation marks omitted)). The plaintiff’s burden is governed
by a “sliding scale,” which “varies depending on the procedural posture of the litigation.”
Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). If a defendant
challenges personal jurisdiction by filing a Rule 12(b)(2) motion, “the plaintiff need persuade the
court only that its factual allegations constitute a prima facie showing of jurisdiction.” Id. at 85
(quoting Ball, 902 F.3d at 197); Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167–68
(2d Cir. 2015) (same). Prior to discovery, a plaintiff need only plead “an averment of facts that,
if credited by the trier, would suffice to establish jurisdiction over the defendant.” Dorchester,
722 F.3d at 84 (quoting Ball, 902 F.3d at 197); Chirag v. MT Marida Marguerite Schiffahrts,
604 F. App’x 16, 19 (2d Cir. 2015) (“A prima facie case requires non-conclusory fact-specific
allegations or evidence showing that activity that constitutes the basis of jurisdiction has taken
place.” (citing Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998))). After discovery,
the plaintiff’s prima facie showing must be factually supported. Dorchester Fin. Sec., 722 F.3d
at 85 (quoting Ball, 902 F.3d at 197).
The court must “construe the pleadings and any supporting materials in the light most
favorable to the plaintiffs.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161,
167 (2d Cir. 2013) (citing Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir.
2010)); Grundstein v. Eide, 598 F. App’x 45, 46 (2d Cir. 2015) (citing DiStefano v. Carozzi N.
Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001)). However, the court need not “accept as true a legal
conclusion couched as a factual allegation.” In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d
659, 673 (2d Cir. 2013), cert. denied sub nom. O’Neill v. Al Rajhi Bank, 134 S. Ct. 2870 (2014)
(quoting Jazini, 148 F.3d at 185). In resolving a motion to dismiss for lack of personal
jurisdiction pursuant to Rule 12(b)(2), a district court may consider materials outside the
pleadings. Dorchester Fin. Sec., 722 F.3d at 86 (citing S. New Eng. Tel. Co. v. Global NAPs
Inc., 624 F.3d 123, 138 (2d Cir. 2010)); Pinto-Thomaz v. Cusi, No. 15-CV-1993, 2015 WL
7571833, at *3 (S.D.N.Y. Nov. 24, 2015) (citing DiStefano, 286 F.3d at 84).
In a case based on diversity jurisdiction,6 personal jurisdiction is determined by the law
of the state in which the court sits. Ash v. Richards, 572 F. App’x 52, 53 (2d Cir. 2014) (citing
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). The court must first look to
the state’s long-arm statute. Whitaker, 261 F.3d at 208. If the court can exercise jurisdiction
pursuant to the long-arm statute, the court must subsequently determine whether the exercise of
Because the Court construes Plaintiff’s allegations as state law tort claims, Defendants
are based in New Jersey and the United Kingdom and Plaintiff alleges $25 million in damages,
the Court has diversity jurisdiction over this action. See 28 U.S.C. § 1332.
personal jurisdiction over the defendant would comport with the Due Process Clause of the
United States Constitution. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007)
(“If, but only if, our answer is in the affirmative, we must then determine whether asserting
jurisdiction under that provision would be compatible with requirements of due process
established under the Fourteenth Amendment to the United States Constitution.” (citing Int’l
Shoe Co. v. Washington, 326 U.S. 310, 315 (1945)).
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Concord
Assoc’s, L.P. v. Entm’t Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time
Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313
(2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).
A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St.
Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18
(2d Cir. 2013). Although all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
In reviewing a pro se complaint, the court must be mindful that a plaintiff’s pleadings
should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104–105
(1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the
court “remain[s] obligated to construe a pro se complaint liberally”). Thus, Courts must liberally
construe papers submitted by pro se litigants “to raise the strongest arguments they suggest.”
Wiley v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015).
The Court lacks personal jurisdiction over the GSK Defendants
The GSK Defendants argue that the Court lacks personal jurisdiction over them because
they are residents of the United Kingdom and neither they nor their direct employer, GSK PLC,
were involved in the manufacturing and distribution of Wellbutrin. (GSK Defs. Mem. of Law in
Supp. of GSK Defs. Mot. (“GSK Defs. Mem.”) 5–7, Docket Entry No. 23-1.) Plaintiff argues
that the Court has personal jurisdiction over the GSK Defendants because “each [D]efendant
conducts business within this country and [the] State of New York.” (Pl. Opp’n to Defs. Mots.
(“Pl. Opp’n”) 2, Docket Entry No. 20.)7
The Court lacks personal jurisdiction over the GSK Defendants because Plaintiff fails to
set forth any allegations showing that the GSK Defendants had any contacts with New York.
While Plaintiff believes that Philadelphia-based GSK LLC and United Kingdom-based GSK
PLC are the same entity, they are not.8 Similarly, although Plaintiff believes that GSK PLC
manufactured and distributed Wellbutrin, it did not.9 (See Compl. 2 (stating that the GSK
Plaintiff filed two oppositions responding to the motions to dismiss by both groups of
Defendants. (See Docket Entry Nos. 20 and 27.) Because both oppositions are identical, the
Court refers only to Plaintiff’s first filed opposition.
See supra Note 3.
See supra Note 3.
Defendants are located at “5 Crescent Drive” in Philadelphia, Pennsylvania); id. at 4 (asserting
that “GlaxoSmithKline (GSK) are the manufacturers and distributors behind Bupropion
(Wel[l]butrin)[,] the anti-depressant drug made by the pharmaceutical company of which
Defendants . . . Hampton and . . . Witty are respectively the Chairman and CEO”).) Nor has
Plaintiff made allegations that the United Kingdom-based GSK Defendants have had any
contacts or business dealings in New York.10 (See generally Compl.) Therefore, Plaintiff has not
met his burden to show that the GSK Defendants had any contacts with New York to permit the
Court to exercise personal jurisdiction over them. See Brown v. Lockheed Martin Corp., 814
F.3d 619, 625–26 (2d Cir. 2016) (holding that a plaintiff failed to show that the district court had
personal jurisdiction over the defendant “[b]ecuase [plaintiff’s] father’s injuries did not arise
from [defendant]’s activities” in the forum state); Leon v. Shmukler, 992 F. Supp. 2d 179, 193
(E.D.N.Y. 2014) (holding that the court lacked personal jurisdiction over a defendant because
“courts consistently require the officer to have personally taken part in the activities giving rise
to the action at issue” (citations omitted)); see also Troma Entm’t, Inc., 729 F.3d at 217 (holding
that a plaintiff has the “burden of demonstrating personal jurisdiction over a person or entity
against whom it seeks to bring suit”).
Plaintiff fails to state a claim against the Johnson Defendants
The Johnson Defendants move to dismiss the Complaint, arguing that they are corporate
officers who may not be held liable for the allegedly tortious acts of their company unless they
directly participated in the conduct that caused the injuries. (Johnson Defs. Mem. of Law in
Supp. of Johnson Defs. Mot. (“Johnson Defs. Mem.”) 7–12, Docket Entry No. 12.) Plaintiff
See supra Note 5.
argues that the Johnson Defendants are liable for his injuries because they “orchestrat[ed] the
entire operation” regarding the manufacture and distribution of Risperdal. (Pl. Opp’n 3–6.)
It is a well-settled principle of New York law that a corporate executive or officer may
be held individually liable for torts that were allegedly committed by the executive’s company
only if the executive participated in or directly oversaw the allegedly tortious conduct. See Bano
v. Union Carbide Corp., 273 F.3d 120, 133 (2001) (“Under New York law, a corporate officer
who commits or participates in a tort, even if it is in the course of his duties on behalf of the
corporation, may be held individually liable.” (citation and internal quotation marks omitted));
Samad v. Goldberg, No. 12-CV-5459, 2016 WL 6678923, at *8 (S.D.N.Y. Nov. 11, 2016) (“New
York law provides that a corporate officer who participates in the commission of a tort may be
held individually liable, regardless of whether the officer acted on behalf of the corporation in
the course of official duties . . . .” (citations, alteration and internal quotation marks omitted));
Leon, 992 F. Supp. 2d at 194 (“[T]he general principle is that a corporate officer who commits or
participates in a tort, even if it is in the course of the officer’s duties on behalf of the corporation,
may be held individually liable.” (citing Bano, 273 F.3d at 131)).
Here, Plaintiff fails to state a claim for relief against the Johnson Defendants because the
Complaint contains no allegations that they participated in the development, manufacture or
distribution of Risperdal. Plaintiff alleges that the Johnson Defendants are liable for the injuries
he suffered from taking Risperdal, but other than the fact that they are identified by their roles as
corporates officers, the Complaint is devoid of any allegations specifying how the Johnson
Defendants engaged in any activity that caused Plaintiff’s injuries. Such allegations are
insufficient to state a claim for relief against the Johnson Defendants. See Bano, 273 F.3d at 133
(affirming the dismissal of certain claims because “[t]he amended complaint [was] vague at best
in describing [the corporate officer]’s role, if any, in creating the [harm] on which the . . . claims
are based”); Krys v. Butt, 486 F. App’x 153, 156 (2d Cir. 2012) (affirming dismissal of claims
against a corporate officer because “all the complaint says about [defendant] was the he was an
officer . . . who oversaw all of [the company]’s commodity pools.” (alteration omitted)); Samad,
2016 WL 6678923, at *8 (finding that “the plaintiff’s theory of personal liability is inapposite
where the plaintiffs have not shown and cannot assert that [the corporate officers] engaged in the
commission of the tort . . . in the course of performing their official corporate duties.”); Leon,
992 F. Supp. 2d at 194 (granting the defendants’ motion to dismiss “given the absence of any
specific allegations as to [the corporate officer’s] precise role as [p]resident . . . and his
involvement in the alleged misconduct”).
Leave to amend
In light of Plaintiff's pro se status, he is granted thirty (30) days from the date of this
Memorandum and Order to file an amended complaint. Should Plaintiff elect to file an amended
complaint, the amended complaint must comply with Rule 8(a) of the Federal Rules of Civil
Procedure, and it must “plead enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
Plaintiff is advised that the amended complaint will completely replace the prior
complaint. Therefore, Plaintiff must include in the amended complaint all the necessary
information that was contained in the prior complaint. The amended complaint must be
captioned “Amended Complaint” and must bear the same docket number as this Memorandum
and Order. If Plaintiff fails to file an amended complaint within thirty (30) days of this
Memorandum and Order, the Court will dismiss this action.
For the foregoing reasons, the Court grants Defendants’ motions to dismiss. Plaintiff is
granted leave to file an amended complaint within thirty (30) days of this Memorandum and
MARGO K. BRODIE
United States District Judge
Dated: March 24, 2017
Brooklyn, New York
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