Rolf et al v. SmithKline Beecham Corporation

Filing 14

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendant GlaxoSmithKline LLCs Motion to Dismiss for Lack of Personal Jurisdiction or Motion to Sever and Transfer Venue (ECF No. 8 ) is GRANTED, in part, and DENIED, in part. This action is severe d and Rachel and Tina Beards claims shall be transferred to the Northern District of Florida; Ramona Lawson and S.L.s claims shall be transferred to the Southern District of Florida; Natasha Rigby and A.M.s claims shall be transferred to the Middle District of Florida; Tracy Latraille and Michelle Rolfs claims shall be transferred to the District of North Dakota. Signed by District Judge Ronnie L. White on 5/3/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
RACHEL BEARD, TINA BEARD,
)
RAMONA LAWSON, individually and as
)
Next friend of S.L., a minor, NATASHA
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RIGBY, individually and as next friend of
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A.M., a minor, MICHELLE ROLF, and
)
TRACY LATRAILLE,
)
)
Plaintiffs,
)
)
v.
)
)
SMITHKLINE BEECHAM CORPORATION )
d/b/a GLAXOSMITHKLINE and
)
GLAXOSMITHKLINE,
)
)
Defendants.
)

No. 4:15-CV-1833 RLW

MEMORANDUM AND ORDER
This matter is before the court on Defendant GlaxoSmithKline LLC’s Motion to Dismiss
for Lack of Personal Jurisdiction or Motion to Sever and Transfer Venue (ECF No. 8). This
matter is fully briefed and ready for disposition.
BACKGROUND 1
Plaintiffs are the mothers and their children, who allege that the mothers ingested Paxil
during their pregnancies and the children suffered birth defects as a result. See Petition, ECF No.
4, passim.

Plaintiffs allege that Defendants SmithKline Beecham Corporation d/b/a

GlaxoSmithKline is a Pennsylvania corporation, and that GlaxoSmithKline LLC is a Delaware
limited liability company. (Petition at 1). Defendants clarify that the Petition incorrectly names
1

When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state
a claim, the Court must take as true the alleged facts and determine whether they are sufficient to
raise more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).

“SmithKline Beecham Corporation d/b/a GlaxoSmithKline” and “GlaxoSmithKline LLC” as
separate defendants. (ECF No. 9 at 2). Defendants states that on October 27, 2009, SmithKline
Beecham Corporation d/b/a GlaxoSmithKline, a Pennsylvania corporation, converted to
GlaxoSmithKline LLC, a limited liability company whose sole member is a Delaware
corporation. (ECF No. 9 at 2). Defendant GlaxoSmithKline LLC, formerly SmithKline Beecham
Corporation d/b/a GlaxoSmithKline (“GSK”), thus, is a citizen of Delaware and it maintains its
corporate and administrative headquarters in Pennsylvania and North Carolina.
In the motion before the Court, GSK submits that this Court lacks personal jurisdiction
over GSK, an out-of-state defendant. GSK requests dismissal of this action or, in the alternative,
severance and transfer of this action to the districts where the mother Plaintiffs were allegedly
prescribed and ingested Paxil during their pregnancies.
DISCUSSION
I.

Personal Jurisdiction

As a basis for personal jurisdiction, the Petition alleges that “GSK transacts substantial
and continuous business in Missouri,” “received substantial revenues from the State of
Missouri[,] and/or distributed products in the State of Missouri.” (Petition, ¶¶7-8). The Petition
recites the elements of the Missouri long-arm statute and committed one or more acts
enumerated in the statute. (Petition, ¶7). 2 Finally, Plaintiffs allege GSK marketed, promoted
and sold Paxil throughout the United States, including in the City of St. Louis, Missouri.
(Petition, ¶8). 3
The minimum contacts necessary for due process may be the basis for either “general” or
“specific” jurisdiction. Dairy Farmers of Am., Inc. v. Bassett & Walker Int'l, Inc., 702 F.3d 472,
2
3

The Petition is mis-numbered and this is the second paragraph 7.
This is the second paragraph 8.
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475 (8th Cir. 2012); 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, Inc. v. Flying Burrito
LLC, 647 F.3d 741, 745–46 (8th Cir. 2001); 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).
Plaintiffs argue that GSK consented to jurisdiction by assigning a registered agent for its
business. (ECF No. 12 at 3-4). As noted by Plaintiffs, the Eighth Circuit held in Knowlton v.
Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir. 1990) that appointment of an agent for service of
process under the relevant state statute gives consent to the jurisdiction of state courts for any
cause of action, whether or not arising out of activities within the state. Id. at 1200. Since that
decision, however, some district courts have questioned that analysis based upon more recent
United States Supreme Court precedent, such as Daimler AG v. Bauman, 134 S. Ct. 746 (2014).
In Daimler, the Supreme Court held that Daimler, a company headquartered in Germany, could
not be sued in California for injuries allegedly caused by the conduct of its Argentinian
subsidiary when that conduct took place entirely outside of the United States.
GSK contends that this Court lacks personal jurisdiction over it under recent United
States Supreme Court precedent. (ECF No. 9 at 7).

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GSK states that a “[a] corporation’s

continuous activity of some sorts within a state … is not enough to support the demand that the
corporation be amenable to suits unrelated to that activity.” (ECF No. 9 at 7 (citing Goodyear
Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2856 (2001)). GSK notes that courts
in this district have likewise observed that they lack personal jurisdiction in similar cases
involving the antidepressant Zoloft. (ECF No. 9 at 7 (citing cases)).
In response, Plaintiffs argue that, even after Daimler, the appointment of an agent can
establish personal jurisdiction. (ECF No. 12 at 6-8 (citing cases)). Plaintiffs contend that GSK
consented to general personal jurisdiction by establishing a corporate agent in Missouri. Id.; see
Perrigo Co. v. Merial Ltd., No. 8:14-CV-403, 2015 WL 1538088, at *7 (D. Neb. Apr. 7, 2015)
(“appointment of an agent for service of process constitutes consent to jurisdiction, and the Due
Process Clause is satisfied”). Plaintiffs argue that “[b]ecause of the breadth of the Missouri
registration statutes, as in Knowlton and the numerous post-Daimler cases that have recognized
its viability, the appointment of a registered agent in Missouri is sufficient to establish personal
jurisdiction over GSK.” (ECF No. 12 at 8).
The Court recognizes the line of older cases that have found that personal jurisdiction can
be based upon having a registered agent in the forum statue. See Knowlton, 900 F.2d at 1200.
This Court, however, agrees with more recent judicial precedent from the United States Supreme
Court and this district that have determined that more substantial contacts are required to hale a
litigant into the court’s forum. The extent of Plaintiff’s allegations is that GSK marketed and
sold Paxil in Missouri. These facts are much less than was alleged in Daimler and, therefore,
personal jurisdiction cannot be found here. Simply marketing and selling a product in a state
does not make the defendant’s affiliations with the state so “continuous and systematic as to
render them essentially at home in the forum state.” Goodyear, 131 S. Ct. at 2851; Barron v.

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Pfizer, Inc., No. 4:15–CV–584 CAS (E.D. Mo. filed Oct. 6, 2015); Clarke v. Pfizer, Inc., No.
4:15-CV-1072 AGF (E.D. Mo. filed Sept. 8, 2015); Keeley v. Pfizer, Inc., No. 4:15-CV-583
ERW (E.D. Mo. filed July 1, 2015); Fidler v. Pfizer Inc., No. 4:15-CV-582 RWS (E.D. Mo. filed
June 25, 2015). Plaintiffs have not alleged that they were sold Paxil in Missouri or that they
ingested Paxil in Missouri. In fact, Plaintiffs have not alleged any connection between Missouri
and their injuries.

Plaintiffs have not alleged any facts supporting a finding of personal

jurisdiction and the Court finds that such jurisdiction does not exist.
II.

Motion to Transfer

Having found that personal jurisdiction does not exist in this forum, the Court must
address GSK’s motion to transfer. 28 U.S.C. §1404 provides that “[f]or the convenience of
parties and witnesses, in the interest of justice, a district court may transfer any civil action to
any other district or division where it might have been brought or to any district or division to
which all parties have consented.” Defendants note that the Plaintiffs were injured in different
states and the mother Plaintiffs were presumably prescribed Paxil by different healthcare
providers. (ECF No. 9 at 9). Rachel Beard was born in Tallahassee, Florida (within the
Northern District of Florida). (Petition, ¶9). The Lawson Plaintiffs reside in and S.L. was born
in Miami, Florida (within the Southern District of Florida). (Petition, ¶10). The Rigby Plaintiffs
reside in and A.M. was born in Orlando. Florida (within the Middle District of Florida).
(Petition, ¶11). The Rolf Plaintiffs reside in and Michelle Rolf was born in North Dakota (within
the District of North Dakota). (Petition, ¶12).
Defendants request that this Court sever Plaintiffs’ claims and transfer them to their
respective home districts. (ECF No. 9 at 9). Defendants assert that transfer of Plaintiffs’ claims
to their respective home districts would serve the convenience of the parties and witnesses as

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well as the interests of justice and moot the problem with personal jurisdiction. (ECF No. 9 at
9).

In response, Plaintiffs argue that “[i]f the Court is inclined to reject Plaintiffs’ consent to

jurisdiction argument, Plaintiffs respectfully request that the Court entertain GSK’s alternative
motion and transfer this action to the United States District Court for the Middle District of
Florida, rather than dismiss it for lack of personal jurisdiction.” (ECF No. 12 at 9-10). Plaintiffs
propose the Middle District of Florida because it is the most convenient for the Florida Plaintiffs.
Alternatively, Plaintiff asks that the Court sever the claims of the Beard Plaintiffs, the Lawson
Plaintiffs, the Rigby Plaintiffs, and the Rolf/Latraille Plaintiffs and transfer them to separate
venues. (ECF No. 9 at 10).
The Court first must determine whether this case could have originally been brought in
the transferee venue. See 28 U.S.C. §1404(a). Venue is proper in a district “in which a
substantial part of the events or omissions giving rise to the claim occurred. . . .” 28 U.S.C.
§1391(a)(2). Plaintiffs do not allege that the mother Plaintiffs were prescribed or ingested Paxil
in Missouri. (Petition, passim). The Court finds that the relevant events to Plaintiff’s claims
occurred outside of Missouri, but instead where the mother Plaintiffs were prescribed and
ingested Paxil during their pregnancies. Therefore, under 28 U.S.C. §1391(a), the Court holds
that Plaintiffs could have originally brought this action in those respective districts.
Once the Court determines that a transferee district is an appropriate venue, the Court
must also consider other factors when deciding whether to transfer a case. “The statutory
language reveals three general categories of factors that courts must consider when deciding a
motion to transfer: (1) the convenience of the parties, (2) the convenience of the witnesses, and
(3) the interests of justice.” Terra Int'l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 691 (8th
Cir. 1997). Factors which courts have considered in deciding a motion to transfer under §

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1404(a) include, under the “convenience” prongs, (1) the convenience of the parties, (2) the
convenience of the witnesses—including the willingness of witnesses to appear, the ability to
subpoena witnesses, and the adequacy of deposition testimony, (3) accessibility of records and
documents, (4) the location where the conduct complained of occurred, and (5) the applicability
of each state's forum law. Biometics, LLC v. New Womyn, Inc., 112 F. Supp. 2d 869, 875, n. 4
(E.D. Mo. 2000). Factors considered under the “interest of justice” prong include (1) judicial
economy, (2) the plaintiff's choice of forum, (3) the comparative costs to the parties of litigating
in each forum, (4) each party's ability to enforce a judgment, (5) obstacles to a fair trial, (6)
conflict of law issues, and (7) the advantages of having a local court determine questions of local
law. Id.
The Court holds that the convenience of the parties weighs in favor of transfer.
Defendants argue, and Plaintiffs do not dispute, that Plaintiffs’ home districts will be have a
significant number of the parties and witnesses, as well as the documents relevant to Plaintiffs’
causes of action. (ECF No. 9 at 10-11). In addition, Defendants maintain that the law of
Plaintiffs’ home states will apply. (ECF No. 9 at 11-12). With respect to the interests of justice,
Defendants note, and Plaintiffs do not dispute, that Plaintiffs’ home states will have greater
interests in the litigation. (ECF No. 9 at 12-13). See Abbott v. Schneider Nat'l Carriers, Inc.,
No. 4:08CV00430 AGF, 2008 WL 4279590, at *4 (E.D. Mo. Sept. 12, 2008)(“Missouri courts
should not bear the burden of hearing a case with such a ‘tenuous connection’ to this forum.”);
Continental Research Corp. v. Drummond Am. Corp., No. 4:07CV 1155 CDP, 2007 WL
4287873, at * 5 (E.D.Mo. Dec.6, 2007) (transferring diversity case to Illinois when plaintiffs
who were employees of a company headquartered in Missouri were not residents of Missouri,
worked and were injured in four other states, and were only “marginally more inconvenienced (if

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at all) by litigating in Illinois as opposed to Missouri.”).

In contrast, Plaintiffs have not

demonstrated any relevant connection between Plaintiffs’ causes of action and this forum. “A
plaintiff's choice of forum is accorded less weight where the operative events giving rise to the
lawsuit took place in another forum.” Abbott, 2008 WL 4279590, at *3. The Court also holds
that transfer of this case to the respective home states of Plaintiffs would minimize the costs of
litigation, particularly travel expenses for witnesses. (ECF No. 9 at 13). Finally, the Court holds
that transfer to the respective district courts would reduce conflict of law issues and allow a local
court to determine local issues. (ECF No. 9 at 14-15). Based upon the foregoing, the Court
further holds that convenience and the interests of justice warrant severance and transfer of these
actions.
Plaintiffs, however, suggest that their claims be transferred to the Middle District of
Florida. Plaintiffs state that the Middle District of Florida is “the most convenient for the Florida
Plaintiffs.” (ECF No. 12 at 9). In the alternative, Plaintiffs propose that “the Court could sever
the claims of the Beard Plaintiffs, the Lawson Plaintiffs, the Rigby Plaintiffs, and the
Rolf/Latraille Plaintiffs and transfer them to separate venues.” (ECF No. 12 at 9).
The Court finds that Plaintiffs has not demonstrated that the Middle of District of Florida
would be a convenient or appropriate venue for all of the Plaintiffs. As previously discussed, the
critical events differ for each of the mother-child pairs and, therefore, their claims must be
severed and transferred to different districts. Rachel and Tina Beard’s claims shall be transferred
to the Northern District of Florida. Ramona Lawson and S.L.’s claims shall be transferred to the
Southern District of Florida. Natasha Rigby and A.M.’s claims shall be transferred to the Middle
District of Florida. Finally, Tracy Latraille and Michelle Rolf’s claims shall be transferred to the
District of North Dakota.

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Accordingly,
IT IS HEREBY ORDERED that Defendant GlaxoSmithKline LLC’s Motion to
Dismiss for Lack of Personal Jurisdiction or Motion to Sever and Transfer Venue (ECF No. 8) is
GRANTED, in part, and DENIED, in part. This action is severed and Rachel and Tina Beard’s
claims shall be transferred to the Northern District of Florida; Ramona Lawson and S.L.’s claims
shall be transferred to the Southern District of Florida; Natasha Rigby and A.M.’s claims shall be
transferred to the Middle District of Florida; Tracy Latraille and Michelle Rolf’s claims shall be
transferred to the District of North Dakota.

Dated this 3rd day of May, 2016.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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