Thompson et al v. Medtronic et al
Filing
70
MEMORANDUM OPINION. Signed by Judge Jon Phipps McCalla on 11/3/2020. (pa)
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 1 of 15
PageID 1162
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DARRELL K. THOMPSON, WILLIAM T. HOLT
(deceased), LEATHA J. HOLT (next of kin), and
NEWAIR MANUFACTURING, LLC,
Plaintiffs,
v.
MEDTRONIC, INC., MEDTRONIC PUBLIC
LIMITED COMPANY, MEDTRONIC USA, INC.,
STRYKER CORPORATION, PHYSIO-CONTROL
INTERNATIONAL, INC., PHYSIO-CONTROL,
INC., PHYSIO-CONTROL MANUFACTURING,
INC., JOLIFE AB, and BAIN CAPITAL, INC.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case Nos.
2:19-cv-2038; 2:16-cv-3013
MEMORANDUM OPINION
Before the Court is Defendants Stryker Corporation, Physio-Control International, Inc.,
Physio-Control, Inc., Physio-Control Manufacturing, Inc. and Jolife AB (collectively, “Stryker
Defendants”) Motion to Dismiss Plaintiffs Darrell K. Thompson, William T. Holt (deceased),
Leatha J. Holt (Next of Kin) and NewAir Manufacturing LLC (collectively, “Plaintiffs”)
Complaint pursuant to Fed. R. Civ. P. 12(b)(3) and 12(b)(6) and for lack of venue. (ECF Nos.
35, 49.)
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 2 of 15
I.
PageID 1163
BACKGROUND & PROCEDURAL HISTORY
A. THOMPSON I
On November 30, 2016, Plaintiffs filed Thompson I against Defendants, which was
timely removed to this Court. Thompson v. Medtronic, Inc., Civil Action No. 2:16-cv-3013
(W.D. Tenn. Dec. 29, 2016). Defendants Bain Capital (“Bain”), Physio-Control International,
Inc., Physio-Control, Inc. Jolife AB, and Stryker Corporation (collectively, “Stryker
Defendants”), and Medtronic all filed separate motions to dismiss in February 2017. (Case No.
2:16-cv-3013, ECF Nos. 21, 23, 24.) 1 Notably, Defendants Bain and Stryker also filed their
motions based on lack of personal jurisdiction. (ECF Nos. 21, 23.)
i.
Bain’s Motion to Dismiss
In the original motion to dismiss, Bain asserted four grounds of dismissal: 1) Lack of
personal jurisdiction; 2) Failure to meet pleading requirements; 3) Failure to state a claim; and
4) Preemption for Plaintiff’s claims of unjust enrichment and conversion. (ECF No. 21-1 at
PageID 105–21.)
The Court only reached a conclusion on Bain’s motion to dismiss for lack of personal
jurisdiction. (ECF No. 41.) Plaintiffs’ basis for personal jurisdiction stemmed from Bain’s
internet advertising showing different product lines, contract information and sales. (ECF No.
27 at PageID 208.) Furthermore, Plaintiffs alleged that Bain was involved in the manufacturing
and sale of Medical Device type products sold worldwide. (Id.) This Court found that
“Plaintiffs’ assertions regarding Bain’s website simply allege a passive website that neither
specifically invokes the intellectual property at issue nor is specifically directed at this forum.”
(ECF No. 41 at PageID 936.) Accordingly, this Court granted Bain’s Motion to Dismiss for
1
Unless stated otherwise, citations under section A (“Thompson I”) will refer to Civil Action No. 2:16-3013.
2
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 3 of 15
PageID 1164
lack of personal jurisdiction, but noted that it “need not reach Bain’s motion to dismiss for
failure to state a claim.” (Id.)
ii.
Stryker Defendants’ Motion to Dismiss
The Stryker Defendants argued that this Court lacked personal jurisdiction and that the
Complaint should be dismissed for failure to state a claim. (ECF No. 23-1 at PageID 134–39.)
They also asserted that Plaintiffs’ unjust enrichment claim was preempted and that they failed
to sufficiently plead the required elements for correcting inventorship. (Id. at PageID 143–49.)
Plaintiffs asserted that they did not have time to sufficiently investigate personal jurisdiction
over Stryker, but alleged that Stryker was registered as a business in the State of Tennessee as
“Stryker Sales Corporation.” (ECF No. 28 at PageID 408.) This Court found that beyond the
aforementioned allegation, Plaintiffs did not make any additional allegations connecting Stryker
to this forum. (ECF No. 41 at PageID 937.) This Court granted the Stryker Defendants’ Motion
to Dismiss for lack of personal jurisdiction and did not reach the motion to dismiss for failure
to state a claim. (Id.)
iii.
Medtronic’s Motion to Dismiss
Defendant Medtronic argued that Plaintiffs failed to state a claim for relief for both joint
inventorship and unjust enrichment. (ECF No. 24-1.) Specifically, Medtronic contended that
there was no allegation that the inventors worked together or that the named inventors of U.S.
Patent 7,841,996 (“’996 Patent”) based their work off Plaintiffs’ work. (Id. at PageId 166.) The
Court addressed both arguments in kind. First, this Court found:
“Plaintiffs cannot be co-inventors of the ’966 Patent because the Complaint does
not allege that they collaborated with the ’966 Patent’s inventors, Peter Sebelius
and Martina Rosell, at any time in the development of the ’966 Patent nor can
3
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 4 of 15
PageID 1165
inferences be drawn from the Complaint that Plaintiffs have ever had any contact
with Sebelius or Rosell at all. Even if Sebelius and Rosell saw the letters sent to
Medtronic’s representative (citation omitted), they do not amount to an open line
of communication during or in temporal proximity to either Sebelius and
Rosell’s or Plaintiff’s inventive efforts.” (ECF No. 41 at PageId 939.)
With regards to Plaintiffs’ unjust enrichment claims, the Court recited that “The TUTSA
‘displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for
misappropriation of a trade secret.’” (Id. at PageID 941.) Furthermore, the Court found that
Plaintiffs’ allegations relied on the confidentiality agreement, and essentially sought a remedy
for misappropriation of trade secrets. (Id. at PageID 942.) Accordingly, Plaintiffs’ unjust
enrichment claims were deemed to be preempted by the TUTSA. The Court dismissed all
claims against Medtronic. (Id.)
iv.
The Court’s Dismissal in Thompson I
The Court’s Order in Thompson I ordered as follows:
“[T]he Court GRANTS Defendant Bain’s Motion to Dismiss the Complaint for
lack of personal jurisdiction and failure to state a claim upon which relief can be
granted (ECF No. 21); GRANTS the Stryker’ Defendants’ Motion to Dismiss
for lack of personal jurisdiction and failure to ‘state claims for relief for
correction of inventor or unjust enrichment’ (ECF No. 23); and GRANTS
Defendant Medtronic’s Motion to Dismiss for failure to state a claim upon which
relief can be granted (ECF No. 24.)” (Id.)
The Court went on to say, “Having dismissed all of Plaintiffs’ claims against the Defendants,
the Court hereby DISMISSES this case with prejudice.” (Id. at PageId 943.) (emphasis
added)
v.
Plaintiffs’ Motions to Amend Judgment
On October 19, 2017, Plaintiff filed a pro se Motion to Amend a Judgment Order
Granting Defendants’ Motion to Dismiss and Dismissing Case with Prejudice in order to
4
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 5 of 15
PageID 1166
“correct a mistake of law.” (ECF No. 43.) All of the arguments made in the briefing were only
with respect to the dismissal on the merits, not the lack of personal jurisdiction over Bain and
Stryker. (Id.) Plaintiffs then argued for several pages that the Court made a mistake in law by
not allowing the case to proceed to a jury trial. (Id. at PageID 952–55.) The Court addressed
these arguments in its Order Denying Motion to Amend Judgment and Order Denying Motion
for Extension of Time to File Appeal:
“[B]oth motions were filed [pro se] by Thompson while Larry E. Fitzgerald was
counsel of record for all Plaintiffs, including Thompson. Accordingly, the
motions are both DENIED for violating Local Rule 83.4(f). Moreover, the
Court’s January 31, 2018, Order to Show Cause instructed Plaintiffs’ prospective
new counsel to appear within fourteen days and to show cause, within fourteen
(14) days following the appearance, why the Court should not deny the motions
for violating Local Rule 83.4(f). Counsel appeared on the nineteenth (19th) day
following the order’s entry, in violation of the Court’s Order. Accordingly, both
motions are DENIED.” ((ECF No. 62 at PageID 1100.)
Furthermore, the Court addressed Plaintiffs’ motion on the merits, finding that there were no
mistakes of law for any of Plaintiffs’ five substantive arguments. (Id. at PageID 1100–103.)
Following the Court’s Order denying the motions to amend the judgment and for more
time to file an appeal, Plaintiffs’ filed a Motion to Amend Order Granting Defendants’ Motions
to Dismiss & Dismissing Case with Prejudice, Judgment, and Order Denying Motion to Amend
Judgment and Order Denying motion for Extension of Time to File Appeal and Brief in Support.
(ECF No. 63.) In this motion, Plaintiffs noted that the “Court’s Order and Judgment does not
address the dismissal without prejudice of Bain Capital and Stryker Defendant’s claims.” (Id.
at PageID 1113.) Plaintiffs pointed out the inconsistency in this Court’s language:
“Defendants Bain Capital and the Stryker Defendants both included Fed. R. Civ.
P. 12(b)(2) grounds for dismissal for lack of personal jurisdiction and Fed. R.
Civ. P. 12(b)(6) grounds for dismissal for failure to state a claim up on which
5
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 6 of 15
PageID 1167
relief can be granted. The Court properly addressed that only the Fed. R. Civ.
P. 12(b)(2) claim was being considered and that the Fed. R. Civ. P. 12(b)(6) need
not be further considered. However, in its conclusion, the Court stated, ‘Having
dismissed all of Plaintiffs’ claims against the Defendants, the Court hereby
DISMISSES this case with prejudice.’ (ECF No. 41.)” Plaintiffs further argued
that “[b]ecause the dismissal for Bain Capital and for the Stryker Defendants
was grounded upon Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, the
Order should not have operated to dismiss these claims with prejudice. Thus,
the Order should be amended to note that the dismissal of claims against Bain
Capital and the Stryker Defendants was without prejudice.” (Id. at PageId 1114–
115.)
The Court denied this motion as well. (ECF No. 69.) Plaintiffs asserted three grounds
for amending the Court’s prior orders: 1) They sought to amend the order of dismissal to state
the dismissal of claims against Bain and Stryker was without prejudice; 2) They sought to
reopen proceedings based on recalculation of Plaintiffs’ time to respond; and 3) They asserted
that the Court should have held the Plaintiffs to a pro se pleading standard. Regarding the
dismissal of claims against Bain and Stryker, the Court said this argument failed based on a full
reading of Federal Rule of Civil Procedure 41(b). In particular, the relevant portion of the rule
provides: “Unless the dismissal order states otherwise, a dismissal under this subdivision (b)
and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19—operates as an adjudication on the merits.” This Court
reiterated that the “order dismissing claims specified that the case was dismissed with
prejudice.” (ECF No. 69 at PageID 1158 (citing ECF No. 41 at PageID 943.).) The Court went
on to state that “Plaintiffs’ argument therefore fails to address the applicable Rule or explain
why the dismissal with prejudice should not apply to his claims against Bain Capital and Stryker
Defendants. Accordingly, this argument does allege an error of law or other mistake. The
motion is denied as to this argument.” (ECF No. 69 at PageID 1159.)
6
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 7 of 15
PageID 1168
B. THOMPSON II
i.
Complaint in Thompson II
The case currently before this Court is Thompson II. Thompson v. Medtronic Pub. Ltd.
Co, Civil Action No. 2:19-cv-2038 (W.D. Tenn. Jan. 11, 2019). Plaintiffs originally filed a
Complaint in this matter for three counts of patent infringement, one count of trade secrets
misappropriation under the Defend Trade Secrets Act (“DTSA”), one count of trade secrets
misappropriation under the Tennessee Uniform Trade Secrets Act (“TUTSA”), and one count
of fraud. (Case No. 2:19-2038, ECF No. 1.) 2 This was filed against the same defendants (or
their privies) as the ones in Thompson I. Since filing the Complaint, Plaintiffs and Medtronic
jointly moved to dismiss Medtronic from the case. (ECF No. 43.)
The parties also filed a joint motion to stay pending resolution of the motion to dismiss.
(ECF No. 36.) Plaintiffs subsequently filed an Amended Complaint asserting only direct,
indirect, and contributory infringement of U.S. Patent No. 6,988,499 (“’499 Patent”) against
Stryker Corporation, Physio-Control International, Inc., Physio-Control, Inc., Physio-Control
Manufacturing, Inc., Jolife AB, and Bain Capital, Inc. (ECF No. 48.) The Stryker Defendants
Motion to Dismiss for Failure to State a Claim and/or for Improper Venue, filed on May 17,
2019, remains pending. (ECF No. 35.) Bain has been dismissed from the matter pursuant to
Rule 41. (ECF No. 63.) Plaintiffs filed a Response to the Stryker Defendants’ Motion to
Dismiss on July 12, 2019 (ECF No. 45), and the Stryker Defendants filed a Reply on July 26,
2019 (ECF No. 49.)
Plaintiffs also filed a Request for Hearing on the Stryker Defendants’ Motion to Dismiss
or in the Alternative for Permission to File a Sur-reply to Stryker Defendants’ Reply, in which
Unless stated otherwise, case citations under section B (“Thompson II”) will refer to Civil Action No. 2:192038.
2
7
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 8 of 15
PageID 1169
they argue that Stryker Defendants’ Reply mischaracterizes the present case by stating that
Plaintiffs’ patent infringement claims “arise out of the same transaction and nucleus of operative
facts” as Thompson I. (ECF No. 50.) In response, Defendants argue that no hearing should be
held because of various procedural defects in Plaintiffs’ filing. (ECF No. 51.)
ii.
Stryker Defendants’ Motion to Dismiss
As reiterated by Defendants, this Court granted the Stryker Defendants’ and Bain’s
motion to dismiss in Thompson I for lack of personal jurisdiction and did not reach their motion
for failure to state a claim. (ECF No. 35-1 at PageID 355; see supra I.A.i, I.A.ii, I.A.iii.) The
Court granted Medtronic’s motion to dismiss on the grounds that: 1) Plaintiffs failed to state a
claim for coinventorship because there were no allegations that the inventors of the ’996 Patent
actually collaborated with Plaintiffs; and 2) Plaintiffs failed to state a claim for unjust
enrichment, because the facts giving rise to that claim alleged unauthorized trade secret use and
the TUTSA preempted such a claim. (Id.)
In the current proceeding, Plaintiffs allege counts of direct, indirect, and contributory
patent infringement. (ECF No. 48.) The Stryker Defendants allege that these claims could have
been brought in the first action and arise from the same nucleus of facts and issues as Thompson
I, and are therefore barred by res judicata. (ECF No. 36.) In the alternative, the Stryker
Defendants ask this court to either dismiss this action for lack of venue or transfer it to the
Western District of Michigan under 28 U.S.C. § 1406 (with respect to Stryker Corporation)
and/or § 1404(a) (with respect to the Physio-Control entities and Jolife AB). (ECF No. 49 at
PageID 463.) Each of these issues is discussed below.
8
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 9 of 15
II.
PageID 1170
THE ISSUE OF RES JUDICATA IS NOW MOOT, AS THE COURT’S
JUDGMENT WAS NOT AN ADJUDICATION ON THE MERITS
Res judicata requires four elements to be met: 1) a prior final, valid decision on the
merits by a court of competent jurisdiction; 2) a second action involving the same parties, or
their privies, as the first; 3) a second action arising out of the transaction or occurrence that was
the subject matter of the previous action; and 4) a second action raising claims that were or
could have been litigated in the first action. Dillard v. Bank of Am., 2013 U.S. Dist. LEXIS
123604, at *19–20 (W.D. Tenn. Aug. 1, 2013) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980);
Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009)).
The principal dispute here boils down to the first prong: a prior final, valid decision on
the merits. Federal Rule of Civil Procedure 41(b) provides, “Unless the notice or stipulation
states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed
any federal- or state-court action based on or including the same claim, a notice of dismissal
operates as an adjudication on the merits.” In other words, the default rule for a dismissal for
personal jurisdiction is without prejudice.
In Thompson I, however, this Court dismissed the claims with prejudice, and did not
clarify the difference between the claims dismissed for lack of personal jurisdiction (Bain and
Stryker) vs. the claims dismissed on the merits (Medtronic). (See Case No. 2:16-cv-3013, ECF
No. 41 at PageID 943.) Defendants rely on this in their res judicata argument, noting that
“Federal Rule 41(b) permits a district court to ‘state otherwise’ and alter the presumptive effect
of the dismissal in question, and the Court’s dismissal order here did state otherwise—it stated
that the case was dismissed with prejudice as to all claims.” (ECF No. 35-1 at PageID 357.)
The Court had further denied Plaintiffs’ request to amend the judgment to clarify the dismissal,
which it rejected by pointing out that Plaintiffs’ Motion failed to “address the applicable Rule
9
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 10 of 15
PageID 1171
or explain why the dismissal with prejudice should not apply to his claims against Bain Capital
and Stryker Defendants.” (ECF No. 69 at PageID 1158–59.)
Plaintiffs in response argue that the “dismissal for lack of jurisdiction does not operate
as an adjudication on the merits. As such, the dismissal of the previous action by the district
court for lack of personal jurisdiction does not operate as a final, valid decision on the merits.”
(ECF No. 45 at PageID 420.) Furthermore, they argue that “the court dismissed the case
because the complaint failed to demonstrate personal jurisdiction over the defendants, a
dismissal under Fed. R. Civ. P. 12(b)(2), which cannot, as a matter of function, be a final, valid
decision on the merits.” (Id. at PageID 422.)
Plaintiffs are correct. The Court’s dismissal in Thompson I was not an adjudication on
the merits, and should have been characterized as a dismissal without prejudice with respect to
the Stryker Defendants and Bain. While Plaintiffs filed a motion for reconsideration, they did
not file an appeal. Federal Rule of Civil Procedure 60(d)(1) empowers a court to “entertain an
independent action to relieve a party from a judgment, order, or proceeding.” Fed. R. Civ. P.
60(d)(1). This rule enables the court to set aside a judgement “where there is ‘no other available
or adequate remedy’ [and] where the party receiving relief did not create situation ‘such as
through [its own] fraud, accident or mistake,’ and where there is a ‘recognized ground—such
as fraud, accident, or mistake—for equitable relief.’” Ramos v. Poore, No. 3:15-CV-518, 2017
WL 4765644 (D. Conn. Oct. 20, 2017) (citing In re Hoti Enter., L. P., 549 Fed. Appx. 43, 44
(2d Cir. 2014) (internal citation omitted)). Here, the Court recognizes its mistake in Thompson
I and the confusion generated by not clarifying the differences in dismissing Medtronic, Bain,
and the Stryker Defendants. Pursuant to Rule 60(d)(1), the Court hereby amends the Judgment
in Thompson I, providing that Defendants Bain and Stryker were dismissed without prejudice
10
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 11 of 15
PageID 1172
for lack of personal jurisdiction. Thus, the issue of dismissal for res judicata is now MOOT as
the Court’s Judgment in Thompson I does not constitute an adjudication on the merits. The
Court next turns to the second principal issue outlined in the Stryker Defendants’ Motion to
Dismiss: Venue.
III.
PLAINTIFFS’ PATENT INFRINGEMENT CLAIMS ARE NOT
PROPERLY BROUGHT IN THIS JUDICIAL VENUE AND SHOULD BE
TRANSFERRED TO THE WESTERN DISTRICT OF MICHIGAN.
Defendants argue that venue is not proper in the Western District of Tennessee. (ECF
No. 35-1 at PageID 368.) The Supreme Court’s interpretation of patent venue in TC Heartland
provides that venue for a domestic corporation that is a defendant in a patent infringement action
is proper only in the district within the corporate defendant’s state of incorporation, or in a
district where the corporate defendant has a regular and established place of business and has
committed acts of infringement. TC Heartland, LLC v. Kraft Foods LLC, 137 S.Ct. 1514
(2017).
Defendants are not incorporated in Tennessee. There is no dispute as to this fact. (ECF
Nos. 35-2, 35-3.) The inquiry naturally turns to whether or not Defendants have a regular and
established place of business in the district. The Federal Circuit provided guidance in light of
the Supreme Court’s decision in TC Heartland. The Court has provided “three general
requirements relevant to the inquiry: (1) there must be a physical place in the district; 2) it must
be a regular and established place of business; and 3) it must be the place of the defendant. If
any statutory requirement is not satisfied, venue is improper under § 1400(b).” In re Cray, Inc.,
871 F.3d 1355, 1360 (Fed. Cir. 2017).
Specifically, Defendants argue that there must be a geographical location in the district
from which the business of the defendant is carried out on a regular basis, where the business
11
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 12 of 15
PageID 1173
is established in the sense of a permanent, fixed location, and where the location is a place of
the defendant, not solely a place of the defendant’s employee. (ECF No. 35-1 at PageID 370
(citing In re Cray, 871 F.3d at 1362–63).) Plaintiffs appear to rely on Stryker’s website, which
advertises active job listings in the Western District of Tennessee. (ECF No. 35-1 at PageID
371.) However, Plaintiffs have not pointed to a physical location or place of business, and rely
solely on general allegations in making the assertion that Stryker or Physio-Control maintain
regular and established places of business in this District. (Id.)
Plaintiffs argue that venue is proper because “the ‘place’ need not be a ‘fixed physical
presence in the sense of a formal office or store.’” (ECF No. 45 at PageID 423 (citing In re
Cray, 871 F.3d at 1362).) Plaintiffs argue that “Stryker Defendants hire employees in Memphis,
Tennessee who store Stryker products and materials at their homes and work regularly at
hospitals in the area.” (Id. at PageId 423.) They cite to the job listings, which suggest that the
listings are not for virtual offices. (Id.) In particular, there is an offered position for “onsite
specialist,” which is indicative of a physical office. (Id.) Plaintiffs also assert that Stryker’s job
listings distinguish between “virtual” and “onsite,” noting that an onsite listing is naturally fixed
in one location. (Id. at PageID 424.) If the Court still has questions on venue, Plaintiffs request
that it reserve the issue and allow limited discovery to the extent that Stryker Defendants have
business relations and employees in the Western District of Tennessee. (Id.) The Court finds
that Plaintiffs’ statements largely amount to unsupported allegations with no evidence, and
nothing to suggest that more ties to the judicial venue could be found through discovery.
Furthermore, “the third requirement when determining venue is that ‘the regular and
established place of business’ must be ‘the place of the defendant.’” Id. The Federal Circuit
has emphasized that “it must be a place of the defendant, not solely a place of the defendant’s
12
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 13 of 15
PageID 1174
employee.” Id. In other words, a virtual job listing in which the employee works from his own
home in this venue may satisfy the first prong (a physical place inside the Western District of
Tennessee), it would fail at this prong, because a virtual job listing would naturally be at the
place of the employee, and not of the defendant corporation.
Additionally, “[r]elevant
considerations include whether the defendant owns or leases the place, or exercises other
attributes of possession or control over the place. One can also recognize that a small business
might operate from a home; if that is a place of business of the defendant, that ca be a place of
business satisfying the requirement of the statute.” Id. “Another consideration might be
whether the defendant conditioned employment on an employee’s continued residence in the
district or the storing of materials at a place in the district so that they can be distributed or sold
from that place.” Id. This consideration is particularly relevant in this matter, and depends on
the job listing.
The Stryker Defendants provide declarations from Brian Mendonca, the Vice President
of Physio-Control, Inc. (ECF No. 35-3) and Martial Bessee, the Senior Director of Global Real
Estate at Stryker Corporation (ECF No. 35-4.). Per these declarations, the Stryker Defendants
allege that they “do not have an office or physical place of business in the Western District of
Tennessee, and do not rent, lease or own an office or property in the Western District of
Tennessee. (ECF Nos. 49, 35-3, 35-4.) Furthermore, they contend that “[a]t best, Plaintiffs
contend that Stryker job listings demonstrate that Stryker hires employees in Memphis,
Tennessee, but even then, Plaintiffs fail to attach their evidence of such job listings. Plaintiffs
merely speculate, without any proof whatsoever, that the ‘Stryker Defendants hire employees
in Memphis, Tennessee who store Stryker products and materials at their homes and work
regularly at hospitals in the area.’” (ECF No. 49 at PageID 461.) The Court agrees. Plaintiffs
13
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 14 of 15
PageID 1175
have merely alleged, based on job listings that were not attached as exhibits for this Court to
review, that Stryker maintains a “regular and established place of business” in the Western
District of Tennessee so as to satisfy patent venue. Defendants further point out that “Plaintiffs
have done nothing to demonstrate that the job listings require employees to reside in this district
(or that employees cannot reside elsewhere, for example, across the state line in West Memphis,
AR or anywhere else that is not within this judicial venue).” (Id. at PageID 462.) Even if
Plaintiffs provide proof of a posting for an “onsite specialist,” Defendants argue that “this is not
enough to establish that Stryker Corporation has a regular and established business in the
district.” (Id. (citing Automated Packaging Sys. V. Free-Flow Packaging Int’l, Inc., No. 5:14cv-2022, 2018 U.S. Dist. LEXIS 5910, at *28 (N.D. Ohio Jan. 12, 2018).)
This Court agrees with the Stryker Defendants and finds that venue is not satisfied in
the Western District of Tennessee. While the Court will not dismiss the matter, it will GRANT
Defendants request that it transfer the action to the United States District Court for the Western
District of Michigan under 28 U.S.C. § 1406 with respect to Stryker Corporation and/or §
1404(a) with respect to the Physio-Control entities. (ECF No. 49 at PageID 463.) Stryker
Corporation’s worldwide headquarters is located at 2825 Airview Boulevard, Kalamazoo, MI
49002, which falls within the Western District of Michigan’s jurisdiction. Venue being proper
in the Western District of Michigan, the Court hereby TRANSFERS this action for further
proceedings in accordance with the Rule 60(d)(1) correction of Judgment.
IV.
CONCLUSION
For the reasons set forth above, the Stryker Defendants’ Motion to Dismiss for failure
to state a claim and/or improper venue is GRANTED IN PART. The issue of res judicata is
now MOOT. The Court will file a Rule 60(d)(1) Correction of Judgment for Thompson I (Civil
14
Case 2:16-cv-03013-JPM-egb Document 70 Filed 11/03/20 Page 15 of 15
PageID 1176
Action No. 2:16-cv-3013) and transfer Civil Action No. 2:19-cv-2038 to the Western District
of Michigan.
SO ORDERED, this 3rd day of November, 2020.
/s/ Jon P. McCalla
JON P. McCALLA
UN ITED STATES DISTRICT JUDGE
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?