Manning et al v. Pd-Rx Pharmaceuticals Inc et al

Filing 209

ORDER granting 5 Motion for Judgment; granting 26 Motion to Dismiss; granting 42 Motion for Judgment on the Pleadings; granting 77 Motion to Dismiss for Lack of Jurisdiction; finding as moot 120 Motion to Dismiss; granting 122 Motion for Judgment on the Pleadings; finding as moot 148 Motion to Amend/Correct; denying 176 Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 6/1/16. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

WILLIAM MANNING, et al.,
Plaintiffs,
vs.
PD-RX PHARMACEUTICALS INC., et al.,
Defendants.

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Civil Action No. 5:15-cv-00566-R

ORDER1
Before this Court are several motions to dismiss for lack of personal jurisdiction.
Doc. Nos. 5, 26, 27, 77, 121, 122, 176.2 After reviewing the parties’ briefs, the Court
agrees it lacks personal jurisdiction over the Defendants. Accordingly, the Court
GRANTS the motions to dismiss3 and DISMISSES Plaintiffs’ complaint in its entirety,
1

On May 25, 2016, Plaintiffs, with the exception of Lawrence Sanders, submitted a notice to the Court
indicating that they intend to voluntarily dismiss their claims against the Defendants. On May 27, 2016,
the remaining Plaintiffs filed joint motions to dismiss their claims against Defendants, which the Court
has granted. However, because the claims of Lawrence Sanders remain pending, these dismissals do
not obviate the need for a ruling from this Court.
2

Doc. No. 5 was filed by Eli Lilly and Company (“Lilly”); Doc. No. 26 was filed by Covidien, Inc.
(“Covidien); Doc. No. 27 was filed by Mallinckrodt, Inc. (“Mallinckrodt”); Doc. No. 77 was filed by
Cornerstone Biopharma, Inc. and Cornerstone Biopharma Holdings LLC f/k/a Cornerstone Biopharma
Holdings, Inc. (“Cornerstone”); Doc. No. 121 was filed by Watson Pharmaceuticals, Inc. n/k/a Actavis,
Inc. (“Watson); Doc. No. 122 was filed by Teva Pharmaceuticals USA, Inc. (“Teva”); and Doc. No. 176
was filed by Mylan Inc. and Mylan Pharmaceuticals Inc. (“Mylan”). Additionally, the Court notes that
although Cornerstone Biopharma Holdings, Inc. was named as a defendant, its counsel represents that it is
now known as Cornerstone Biopharma Holdings, LLC. Doc. No. 36. As a limited liability company,
Cornerstone Biopharma Holdings, LLC is a citizen of every place that its members were citizens. Siloam
Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1238 (10th Cir. 2015). Plaintiffs do not allege,
and this Court does not assume, that any member of this limited liability company is an Oklahoma citizen.

3

The Court only grants Mylan’s motion in part, as Mylan also moved to dismiss for failure to state a
claim. The Court denies that portion of Mylan’s motion as moot.

1

thereby mooting Defendants’ Joint Motion to Dismiss and/or for Judgment on the
Pleadings (Doc. No. 120). The Court further denies Plaintiffs’ Motion to Amend/Correct,
Doc. No. 148, as MOOT.4
I.

BACKGROUND
Plaintiffs in this products-liability action allege injuries resulting from the use of

propoxyphene-containing products that Defendants manufactured, marketed, distributed,
or sold. Doc. No. 1-1. Admittedly, no Plaintiff is an Oklahoma resident. Doc. No. 180-1
at 9. Nevertheless, Plaintiffs contend that this Court may exercise specific and general
jurisdiction based on Defendants’ in-state activity.
II.

CONSIDERATION
JURISDICTION

OF

PERSONAL JURISDICTION

BEFORE

SUBJECT MATTER

Both parties present jurisdictional challenges. Defendants argue that the Court
lacks personal jurisdiction while the Plaintiff argues the Court lacks subject-matter
jurisdiction over the action. The Court may evaluate personal jurisdiction before subject
matter jurisdiction pursuant to the holding in Ruhrgas AG v. Marathon Oil Co.:
. . . in cases removed from state court to federal court, as in
cases originating in federal court, there is no unyielding
jurisdictional hierarchy. Customarily, a federal court first
resolves doubts about its jurisdiction over the subject matter,
but there are circumstances in which a district court
appropriately accords priority to a personal jurisdiction
inquiry.
526 U.S. 574, 584 (1999). Such circumstances include where personal jurisdiction
presents straightforward issues, while subject-matter jurisdiction raises issues that are
4

The Court reviewed Plaintiffs’ Motion to Amend their complaint and determined that the proposed
amendments would not cure the jurisdictional defects cited herein.

2

difficult, novel, or complex. Id. at 588 (no abuse of discretion to address straightforward
personal jurisdictional question before difficult and novel subject matter jurisdiction
issue); Gadlin v. Sybron Int’l Corp., 222 F.3d 797, 799 (10th Cir. 2000) (“a court does not
abuse its discretion if it addresses personal jurisdiction first in a case where alleged
defects in subject matter jurisdiction raise difficult questions but the personal jurisdiction
issue is straightforward and presents no complex questions of state law”); Browning v.
Salmon, 143 F. App’x 917, 920 n.1 (10th Cir. 2005) (ruling on personal jurisdiction
mooted appellant’s argument regarding subject-matter jurisdiction) (citing id.)
Upon review of the parties’ arguments regarding both jurisdictional issues, the
Court deems it appropriate to address personal jurisdiction first. The personal jurisdiction
question presents straightforward issues regarding the sufficiency of contacts and the
consequences of registration to do business. Conversely, subject-matter jurisdiction
presents complex issues, including the doctrine of fraudulent misjoinder, a doctrine the
Tenth Circuit has twice declined to adopt or reject.5 See Parson v. Johnson & Johnson,
749 F.3d 879, 893 (10th Cir. 2014) (declining to address appellant’s alternative
jurisdictional argument which required determination on whether to recognize the
doctrine of fraudulent misjoinder of plaintiffs); Lafalier v. State Farm Fire & Cas. Co.,
391 F. App’x 732, 736 (10th Cir. 2010) (declining to decide whether to adopt the

5

According to the judicially-created doctrine of fraudulent misjoinder, in an attempt to defeat diversity
jurisdiction, plaintiffs violate Rule 20 of the Federal Rules of Civil Procedure by joining distinct claims
against two or more groups of defendants. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th
Cir.1996), abrogated on other grounds by Cohen v. Office Depot, 204 F.3d 1069 (11th Cir. 2000).

3

doctrine, as it would not change the result in the case). Moreover, courts who have
adopted the doctrine have not applied it uniformly.6
Given these considerations, the Court finds it appropriate and efficient to address
personal jurisdiction first.
III.

PERSONAL JURISDICTION STANDARD
“Whether a federal court has personal jurisdiction over a nonresident defendant in

a diversity action is determined by the law of the forum state.” Yarbrough v. Elmer
Bunker & Assocs., 669 F.2d 614, 616 (10th Cir. 1982) (citations omitted). “The test for
exercising long-arm jurisdiction in Oklahoma is to determine first whether the exercise of
jurisdiction is authorized by statute and, if so, whether such exercise of jurisdiction is
consistent with constitutional requirements of due process.” Luckett v. Bethlehem Steel
Corp., 618 F.2d 1373, 1385–86 (10th Cir. 1980) (citations omitted). Because the
Oklahoma long-arm statute extends jurisdiction to the maximum extent permitted by due
process, “this two-part inquiry collapses into a single due process analysis.” Rambo v.Am.
S. Ins. Co., 839 F.2d 1415, 1416 (10th Cir. 1988) (quoting OKLA. STAT. ANN. tit. 12,§
2004(F) (“A court of this state may exercise jurisdiction on any basis consistent with the
Constitution of this state and the Constitution of the United States.”)).
“The Due Process Clause protects an individual’s liberty interest in not being
subject to the binding judgments of a forum with which he has established no meaningful
6

Some courts require the misjoinder be “egregious” while other courts find that “mere” misjoinder will
suffice. Compare, e.g., Tapscott, 77 F.3d 1353 (requiring egregiousness) with Greene v. Wyeth, 344 F.
Supp. 2d 674, 685 (D. Nev. 2004) (misjoinder alone sufficient to sever parties); In re Rezulin Prod. Liab.
Litig., 168 F. Supp. 2d 136, 147–48 (S.D.N.Y. 2001) (same). Further complicating matters, there is
disagreement as to what constitutes “egregious.” See Halliburton v. Johnson & Johnson, 983 F. Supp. 2d
1355, 1359 (W.D. Okla. 2013) (collecting cases).

4

‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72
(1985) (citation and footnote omitted). Accordingly, a court “may exercise personal
jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’
between the defendant and the forum State.” World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 291 (1980) (citation omitted). The minimum-contacts test may be met by
establishing either general or specific jurisdiction. Employers Mutual Cas. Co. v. Bartile
Roofs, Inc., 618 F.3d 1153, 1159 (10th Cir. 2010). If the minimum-contacts test is met,
the Court must determine if the exercise of personal jurisdiction over Defendants would
offend “traditional notions of fair play and substantial justice,” or, instead, is
“reasonable.” OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th
Cir. 1998) (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102,
113 (1987)).
The burden to establish personal jurisdiction is on the plaintiff. Dudnikov v. Charlk
& Vermillion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th Cir. 2008). Because the parties
have engaged in jurisdictional discovery but there has been no evidentiary hearing,
Plaintiffs need only make a prima facie showing of personal jurisdiction. Anzures v.
Flagship Rest. Grp., 2016 WL 1612789, at *2 (10th Cir. Apr. 22, 2016) (following
limited jurisdictional discovery but no evidentiary hearing, plaintiff must only make a
prima facie showing). The Court takes “as true all well-pled (that is, plausible, nonconclusory, and non-speculative . . .) facts alleged in plaintiffs’ complaint.” Dudnikov,
514 F.3d at 1070. All factual disputes are resolved in Plaintiffs’ favor. Id.

5

IV.

SPECIFIC JURISDICTION
The exercise of specific jurisdiction over a defendant in a tort-based action is

proper if (1) “the defendant purposefully directed its activities at residents of the forum
state” and (2) “the plaintiff’s injury arose from those purposefully directed activities.”
Newsome v. Gallacher, 722 F.3d 1257, 1264 (10th Cir. 2013) (citing Dudnikov, 514 F.3d
at 1070) (emphasis added). A defendant purposefully directs its activities if it commits an
intentional action, “expressly aimed at the forum state,” with “knowledge that the brunt of
the injury would be felt in the forum state.” Id. (citing Dudnikov, 514 F.3d at 1072). To
determine if an injury arises out of those activities, courts apply either the but-for or the
proximate-cause test. Id. at 1269. Under the but-for test, “any event in the causal chain
leading to the plaintiff’s injury is sufficiently related to the claim to support the exercise
of specific jurisdiction.” Id. By contrast, the proximate-cause test “is considerably more
restrictive and calls for courts to examine whether any of the defendant’s contacts with
the forum are relevant to the merits of the plaintiff’s claim.” Id. While the Tenth Circuit
has not chosen one over the other, both tests require a “true causal element,” between
defendants’ forum contacts and the litigation. Id.; 7 see also Shrader v. Biddinger, 633
F.3d 1235, 1240, 1246 n.8 (10th Cir. 2011) (discussing Dudnikov, 514 F.3d at 1078–79)
(discussing the “causal aspect” of “arising out of”); see also Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (“specific jurisdiction requires an
‘affiliatio[n] between the forum and the underlying controversy’”) (quoting von Mehren
7 The Tenth Circuit has rejected a third test, the “substantial connection” test. See Shrader, 633 F.3d at 1246 n.8 (discussing Dudnikov, 514 F.3d at 1078–79). “Under this

theory, the relationship between the contacts and the suit can be weaker when the contacts themselves are more extensive.” Id. Rejecting this test, the Tenth Circuit noted that
the test “inappropriately blurs the distinction between specific and general personal jurisdiction.” Id. The test “varie[d] the required connection between the contacts and the
claims asserted based on the number of the contacts” and therefore “improperly conflates these two analytically distinct approaches to jurisdiction.” Id. Because the test
eliminated “the distinction between contacts that are sufficient to support any suit and those that require the suit be related to the contact, it also undermines the rationale for the
relatedness inquiry: to allow a defendant to anticipate his jurisdictional exposure based on his own actions.” Id. at 1078–79.

6

& Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L.Rev. 1121,
1136 (1966)).
Plaintiffs contend that Defendants purposefully directed their contacts at
Oklahoma because:
 the Defendant sells pharmaceutical products to Oklahoma residents, in some cases a
“substantial amount;”
 the Defendant either retains or employs sales representatives who are or are “most
likely” Oklahoma residents to visit Oklahoma physicians with the goal of encouraging
the physicians to prescribe the entity’s drugs to their patients, in order to maintain or
increase that entity’s market share in Oklahoma;
 the Defendant is registered to do business in Oklahoma;8
 the Defendant has been involved in litigation in Oklahoma Courts;9
 the Defendant has “transacted, solicited, and conducted business in the State of
Oklahoma and derived substantial revenue from such business;”
 Defendants Lilly, Teva, and Mylan either have employees in Oklahoma or have
advertised job openings for sales representatives or consultants in Oklahoma;
 Lilly has “collaborat[ed] with Oklahoma biomedical researchers in an effort to
develop new drugs;”
 Cornerstone “routinely sponsor events aimed at healthcare providers so that it can
maintain and/or steadily increase its market share of pharmaceutical drug sales in this
state;”
 Watson has been registered with the Oklahoma State Board of Pharmacy since at least
1996 and holds several licenses by the Board, its subsidiary has been registered with
the Board since 1990 until 1998, and Actavis is included as a Business Associate
Vendor by the Oklahoma Association of Healthcare Providers;

8

Plaintiff does not contend that Cornerstone, Watson, or Teva are registered to do business in the State.

9

Plaintiffs do not contend that Cornerstone has been involved in prior litigation in Oklahoma.

7

 Teva has been registered with the Oklahoma State Board of Pharmacy since at least
2006 and holds several licenses by the Board, and a “Teva Pharmaceuticals USA
Award” exists in the College of Pharmacy, University of Oklahoma; and
 Mylan “supports students in this very district by presenting an award to the
outstanding graduate from the University of Oklahoma, College of Pharmacy.”10
Plaintiffs contend that their injuries arose out of these contacts because their
“injuries occurred in the course of a common effort” and “relate[] to the genre of
activities”

that

the

Defendants

perform

in

Oklahoma,

“i.e.,

marketing

of

pharmaceuticals.” Doc. Nos. 97 at 10–11 (Covidien); 98 at 10–11 (Lilly); 99 at 10–11
(Mallinckrodt); 108 at 10–11; (Cornerstone); 130 at 10–11 (Teva); 131 at 10–11
(Watson); 188 at 13–14 (Mylan). Plaintiffs admit, however, that no Plaintiff is a resident
of Oklahoma. Doc. No. 180-1 at 9.
Plaintiffs argue that their lack of in-forum residency is of no moment. Plaintiffs are
correct that residency in the forum state is not the sine qua non of specific jurisdiction.
Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984). For example, in Keeton, a New
York resident was able to sue an Ohio corporation headquartered in California for libel in
New Hampshire. 465 U.S. 770 (1984). Because the harm from a libelous tort occurs
“wherever the offending material is circulated,” id. at 777, and the libelous material was
circulated in New Hampshire, the Court found that New Hampshire was sufficiently
connected to the controversy to confer specific jurisdiction over the defendant. Id. at 781.
The Supreme Court recently reaffirmed the principle that forum residency is not

10

Doc. Nos. 97 at 9–11 (Covidien); 98 at 9–11, 98-1, 98-2 (Lilly); 99 at 9–11 (Mallinckrodt); 108 at 9–10
(Cornerstone); 130 at 9–11, 130-1 (Teva); 131 at 9–11 (Watson); 188 at 12–14, 188-1, 188-2 (Mylan).

8

dispositive for specific jurisdictions in Walden v. Fiore, where plaintiffs could not sue a
Georgia defendant in Nevada over an incident occurring in Georgia simply by virtue of
plaintiffs’ Nevada residency. 134 S.Ct. 1115 (2014).
Nevertheless, before the Court may exercise specific jurisdiction over the
Defendants, Plaintiffs must show some “true causal element” between the defendants’
contacts and the litigation. Shrader, 633 F.3d at 1246 n.8. Plaintiffs have not done so.
Even assuming that Defendants purposefully directed their activities at Oklahoma,
Plaintiffs have not met their prima facie burden to show that their injuries arose out of
those activities. Plaintiffs are non-Oklahoma residents who ingested propoxyphenecontaining products or represent someone who did. Doc. No. 180-1 at 9. The injuries they
complain of occurred outside of Oklahoma and arose out of Defendants’ marketing and
sales of propoxyphene-containing products outside of Oklahoma. Plaintiffs have put forth
no evidence the products were ingested in Oklahoma nor any argument to draw any
connection between their out-of-state injuries and Defendants’ in-state activities under
either the but-for or the proximate cause test. Accordingly, the exercise of specific
jurisdiction over the Defendants is not proper.
V.

GENERAL JURISDICTION
Plaintiffs alternatively argue that Defendants have sufficient minimum contacts to

permit general jurisdiction. At their request, the Court granted Plaintiffs the opportunity
to conduct jurisdictional discovery as to general jurisdiction, which ended on April 11,
2016. The Court ordered Plaintiffs to either submit amended responses to Defendants’
motions or state that they intended to stand on their original briefs 21 days thereafter, or
9

May 3, 2016. Instead of doing either, on May 25, 2016, Plaintiffs filed a notice indicating
that voluntarily dismissals would be forthcoming. The proper course should have been for
Plaintiffs to notify the Court by the deadline required by the Order, not weeks later. In
any event, the Court presumes based on the foregoing events that any supplemental
responses would not call for a different result.
Because general jurisdiction is unrelated to the events giving rise to the lawsuit,
minimum contacts test for general jurisdiction is “more stringent” than that for specific
jurisdiction. Benton v. Cameco Corp., 375 F.3d 1070, 1080 (10th Cir. 2004) (quotations
omitted); see also Daimler AG v. Bauman, 134 S. Ct. 746, 761 n.19 (2014) (“It is one
thing to hold a corporation answerable for operations in the forum State . . . quite another
to expose it to suit on claims having no connection whatever to the forum State.”); Monge
v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 604, 620 (10th Cir. 2012) (quoting Benton,
foreign company’s contacts with the forum was not “so continuous and systematic as to
render [it] essentially at home in the forum State”); see also Lively v. IJAM, Inc., 114 P.3d
487, 494 (Okla. Ct. App. 2005) (“[t]he facts required to establish general jurisdiction
must be ‘extensive and persuasive.’”) (quotations omitted).
A state’s exercise of general jurisdiction over a foreign defendant is appropriate
when that defendant’s “affiliations with the State are so ‘continuous and systematic’ as to
render them essentially at home in the forum state.” Goodyear, 564 U.S. at 919;11 see also
11

Goodyear arose out of a tragic bus accident outside of Paris that claimed the lives of two boys from
North Carolina. 564 U.S. 915, 919 (2011). The boys’ parents sued Goodyear and its European
subsidiaries in North Carolina state court, blaming Goodyear’s defective tire for the accident. Id. A North
Carolina court found the state could exercise general jurisdiction over the subsidiaries because a
percentage of the tires they made were distributed in the state. Id. A unanimous Supreme Court held that
North Carolina could not exercise general jurisdiction. Id.

10

Daimler, 134 S. Ct. at 749 (quoting id.).12 The paradigms for a where corporation is
naturally “at home” are its principal place of business and place of incorporation.
Goodyear, 564 U.S. at 924; Daimler, 134 S.Ct. at 760. These locations have “the virtue of
being unique—that is, each ordinarily indicates only one place—as well as easily
ascertainable.” Daimler, 134 S.Ct. at 760.
These paradigms, however, are not exclusive. The Supreme Court has not
“foreclose[d] the possibility that in an exceptional case, a corporation’s operations in a
forum other than its formal place of incorporation or principal place of business may be
so substantial and of such a nature as to render the corporation at home in that State.”
Daimler, 134 S.Ct. at 761 n.19 (emphasis added). The Court has repeatedly rejected
arguments suggesting that substantial commercial activity alone would be sufficient for
general jurisdiction. For example, in Goodyear, the Court cautioned that “[a]
corporation’s continuous activity within a state is not enough to support the demand that
the corporation be amenable to suits unrelated to that activity” and rejected plaintiffs’
“sprawling view of general jurisdiction” that “any substantial manufacturer or seller of
goods would be amenable to suit, on any claim for relief, wherever its products are
distributed.” Goodyear, 564 U.S. at 929. The Court reaffirmed this position in Daimler,
rejecting a formulation of general jurisdiction that would permit exercise over a defendant
“in every State in which a corporation engages in a substantial, continuous, and
systematic course of business” as “unacceptably grasping.” 134 S.Ct. at 761 (quotations

12

The question before the Court in Daimler was whether a state could exercise general jurisdiction over a
foreign company based on the contacts of its in-state subsidiary. 134 S.Ct. 746 (2014).

11

omitted). Writing for the majority, Justice Ginsburg reminded the parties that general
jurisdiction has increasingly played a “reduced role,” Daimler, id. at 755, 757–58, and
“only a limited set of affiliations with a forum will render a defendant amenable to allpurpose jurisdiction there.” Id. at 760. Importantly, a court must appraise “a corporation’s
activities in their entirety, nationwide and worldwide,” because “[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 omitted).13
Plaintiffs argue that each Defendant is subject to general jurisdiction because the
Defendant “manufactur[ed] and market[ed] . . . pharmaceutical products,”14 “conducted
extensive commercial activity within Oklahoma for years,” and “transacted business” in
Oklahoma.15 Doc. Nos. 97 at 15, 17, 18 (Covidien); 98 at 15, 17, 18 (Lilly); 99 at 15, 17,
13

Years before Goodyear or Daimler, the Tenth Circuit identified factors to determine whether the
exercise of general jurisdiction was proper. See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d
1523, 1533 (10th Cir. 1996). In post-Goodyear, pre-Daimler cases, the Tenth Circuit has indicated that
these factors remain relevant in the general jurisdiction inquiry. See Monge, 701 F.3d at 620 n.9;
Grynberg v. Ivanhoe, 490 F. App’x 86, 94 (10th Cir. 2012), cert denied, 133 S.Ct. 941 (2013). Plaintiffs
do not argue that the exercise of general jurisdiction is proper under the Trierweiler factors, and so the
Court does not address them here.
14

Plaintiffs did not allege in their Complaint that any defendant actually manufactured pharmaceuticals in
the State of Oklahoma, but instead that defendants “were in the business of and did (either directly or
indirectly . . .) . . . manufacture . . . throughout the United States, including in the State of Oklahoma . . .”
Doc. No. 1-1, at ¶ 39; see also ¶ 40, 68, 73, 79, 86, and 89.
15

When arguing for specific jurisdiction, Plaintiffs argued and submitted evidence related to various
commercial activity by the defendants. As discussed above, these contacts have no relationship to the
present controversy and are insufficient to confer specific jurisdiction. Conceivably, these contacts could
have been relevant to the general jurisdiction analysis. However, Plaintiffs, who bear the burden, did not
suggest that the Court should consider these contacts in the context of general jurisdiction. And the Court
will not do so here. Plaintiffs were represented by counsel, were granted limited jurisdictional discovery
as it relates to general jurisdiction, and were given the opportunity to supplement their briefs. Plaintiffs
not only did not supplement their briefs, but they also failed to comply with the Court’s Order which
required a response by May 3, 2016. Accordingly, the Court will not read arguments in to Plaintiffs’
briefs that Plaintiffs failed to include, despite opportunities to do so.

12

18 (Mallinckrodt); 108 at 14, 16, 18 (Cornerstone); 130 at 15, 17, 18 (Teva); 131 at 15,
17, 18 (Watson); 188 at 16–18 (Mylan). These allegations, without more, are insufficient
to show that Defendants are “at home” in Oklahoma. Daimler, 134 S. Ct. at 757 (“a
corporation’s ‘continuous activity of some sorts with a state is not enough to support the
demand that the corporation be amenable to suits unrelated to that activity’”) (quotations
omitted); see also Allen v. IM Sols., LLC, 83 F. Supp. 3d 1196, 1204 (E.D. Okla. 2015)
(defendant “generat[ing] and sell[ing] hundreds of leads to Oklahoma lawyers each
month its commercial activities” and having an ongoing relationship with two Oklahoma
law firms was not sufficient to confer general jurisdiction); Evans v. Johnson & Johnson,
2014 WL 7342404, at *5 (S.D. Tex. Dec. 23, 2014) (allegation that defendants did more
business in forum state than they did in the states of incorporation and principal place of
business, hired and trained forum residents to market, sell, and train physicians and
hospitals on product was insufficient for general jurisdiction); Locke v. Ethicon Inc., 58 F.
Supp. 3d 757, 762 (S.D. Tex. 2014), appeal dismissed (Apr. 16, 2015) (over a nine-year
period, Texas sales of $18 million exceeded the $10 million sales in state of incorporation
and principal place of business, insufficient to confer general jurisdiction).
Accordingly, based on the record before it, the Court finds it lacks general
jurisdiction over the Defendants.
VI.

APPOINTMENT OF REGISTERED AGENT AS CONSENT TO JURISDICTION
As an alternative to establishing general jurisdiction through minimum contacts,

Plaintiffs urge this Court to find general jurisdiction over certain Defendants based on
their compliance with Okla. Stat. tit. 18 § 1022. The statute requires foreign corporations
13

doing business in Oklahoma to maintain a registered agent. Id. By appointing a registered
agent, Plaintiffs argue, Defendants have consented to general jurisdiction. For their part,
Defendants argue that registration alone is insufficient to confer general jurisdiction,
particularly post-Daimler.
As Plaintiffs point out, some courts have found, even post-Daimler, that
registration constituted consent to general jurisdiction. See, e.g., Acorda Therapeutics,
Inc. v. Mylan Pharm., Inc., 2015 WL 186833, at *7–14 (D. Del. Jan. 14, 2015); Senju
Pharm. Co., Ltd. v. Metrics, Inc., 96 F.Supp.3d 428 (D. N.J. 2015). However, other
courts, including the Second Circuit, have concluded that “consent-through-registration”
raises due process concerns. See, e.g., Brown v. Lockheed Martin Corp., 814 F.3d 619,
638–39 (2d Cir. 2016); AstraZeneca AB v. Mylan Pharm., LLC, 72 F.Supp.3d 549,
555–56 (D. Del. 2014).
Some courts finding registration as a basis for general jurisdiction root their
decision on the Supreme Court’s decision in Pennsylvania Fire Insurance Co. of
Philadelphia v. Gold Issue Mining & Milling Co, 243 U.S. 93, 95–96 (1917). In
Pennsylvania Fire, the Supreme Court upheld a decision of the Missouri Supreme Court
that appointment of a registered agent constituted consent to general jurisdiction in
Missouri. Id. In a subsequent decision, the Supreme Court cautioned that such decisions
are guided by state law:
Unless the state law either expressly or by local construction
gives to the appointment a larger scope, we should not
construe it to extend to suits in respect of business transacted
by the foreign corporation elsewhere . . .
14

Robert Mitchell Furniture Co. v. Selden Breck Const. Co., 257 U.S. 213, 216 (1921)
(emphasis added).
Likewise, the Tenth Circuit has looked to state law to determine whether foreign
corporations consented to general jurisdiction through registration. In Budde v. LingTemco-Vought, Inc., plaintiff argued defendants consented to general jurisdiction in New
Mexico by registering to do business in the state. 511 F.2d 1033, 1036 (10th Cir. 1975).
Without direct guidance from New Mexico law, the Tenth Circuit applied the Supreme
Court’s “preferential construction of foreign corporation process statutes which excludes
their operation if the cause of action does not arise out of business done by the
corporation in the state,” and found no general jurisdiction. Id. (citing Morris & Co. v.
Skandinavia Ins. Co., 279 U.S. 405 (1929); Louisville & N. R.R. v. Chatters, 279 U.S. 320
(1929)). The same plaintiff refiled his case in Colorado and two years later posed a
similar argument to the Tenth Circuit. Budde v. Kentron Hawaii, Ltd., 565 F.2d 1145
(10th Cir. 1977). This time, guided by Colorado law, the Tenth Circuit found that
registration to do business in Colorado constituted consent to general jurisdiction. Id. at
1147–49. The Tenth Circuit distinguished this result from its decision in Budde’s New
Mexico action based on the differing status of local law on the issue. Id. at 1148.
Oklahoma’s registration statute is silent on the issue of whether registration
constitutes consent to jurisdiction. Okla. Stat. tit. 18 § 1022. Therefore, Plaintiffs’
argument is one of implied consent. Neither party cites, nor has the Court found, any
Oklahoma authority that provides a direct answer to this issue. Given this lack of
authority, the Court applies the Supreme Court’s “preferential construction” recognized
15

by the Tenth Circuit and declines to exercise general jurisdiction over the Defendants on
the basis of their registration in the state. This result is consistent with another Oklahoma
federal court addressing the issue. See Samuelson v. Honeywell, 863 F. Supp. 1503, 1507
(E.D. Okla. 1994) (rejecting argument that registration in Oklahoma constitutes consent
to general jurisdiction).
Defendants also argue that Plaintiffs’ argument raises due process concerns. As
indicated above, other courts have noted that registration as a basis for general
jurisdiction may have limited reach post-Daimler. The Second Circuit recently observed
that exercising general jurisdiction over a defendant simply because it complied with a
statute lacking clear jurisdictional implications may run afoul of Daimler:
But we believe that Pennsylvania Fire is now simply too
much at odds with the approach to general jurisdiction
adopted in Daimler to govern as categorically as [plaintiff]
suggests;16 in our view, the Supreme Court’s analysis in
recent decades, in particular in Daimler and Goodyear,
forecloses such an easy use of Pennsylvania Fire to establish
general jurisdiction over a corporation based solely on the
corporation’s registration to do business and appointment of
an agent under a state statue lacking explicit reference to any
jurisdictional implications.
Brown, 814 F.3d at 638–39. However, because Plaintiffs’ argument finds no support in
Oklahoma law, the Court need not reach this issue.
VII.

CONCLUSION

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There the plaintiff argued that Pennsylvania Fire “establishes general jurisdiction in state courts for all
corporations that register to do business and appoint an agent in a state,” and that there are no due process
implications under Daimler when the question is about consent to jurisdiction. Brown, 814 F.3d at 638.

16

For the forgoing reasons, the Court concludes it lacks personal jurisdiction over
the Defendants and therefore GRANTS their motions to dismiss, Doc. Nos. 5, 26, 27, 77,
121, and 122. The Court GRANTS in part Mylan’s Motion to Dismiss, Doc. No. 176,
insofar as it relates to personal jurisdiction and DENIES the remainder as

MOOT.

Accordingly, the Court DISMISSES Plaintiffs’ complaint in its entirety. In light of the
foregoing, defendants’ Joint Motion to Dismiss and/or for Judgment on the Pleadings
(Doc. No. 120) is MOOT. The Court further denies Plaintiffs’ Motion to Amend/Correct,
Doc. No. 148, as MOOT. This matter is DISMISSED WITHOUT PREJUDICE.17
IT IS SO ORDERED, this 1st day of June, 2016.

17

There remains the issue of Covidien PLC and the “aaiPharma entities” (aaiPharma Inc., aaiPharma
LLC, aaiPharma Development Services Inc., Neosan Pharmaceuticals, Inc.). These entities have not made
an appearance and at the October 29, 2015 hearing, the Court was informed that they were not properly
served. Doc. No. 175, at 10–12. The Court ordered Plaintiffs to clarify, by November 9, 2015, what they
intended to do regarding these entities. On that date, Plaintiffs represented they were “in the process of
obtaining stipulations by and between all counsel for dismissal and/or clarification” for these entities. On
May 27, 2016, certain Plaintiffs filed a motion to dismiss the aaiPharma entities. In any event, the Court
has reviewed the allegations regarding these entities and for the reasons set forth herein, concludes that
jurisdiction would be lacking as to these entities as well.

17