Parker et al v. Analytic Biosurgical Solutions et al
Filing
24
MEMORANDUM OPINION AND ORDER granting 9 MOTION by Analytic Biosurgical Solutions to Dismiss; denying as moot plaintiffs' 16 MOTION for Leave to File Surreply. Signed by Judge Joseph R. Goodwin on 7/26/2013. (cc: attys; any unrepresented party) (skh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
YVONNE LYNN PARKER, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 2:12-cv-01744
ANALYTIC BIOSURGICAL SOLUTIONS;
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Analytical Biosurgical Solutions’ (“ABISS”)
Motion to Dismiss [Docket 9]. The plaintiffs filed a response, ABISS filed a reply, and the
motion is ripe for review. Further pending before the court is the plaintiffs’ Motion for Leave to
File Surreply in Opposition to Defendant Analytic Biosurgical Solutions’ Motion to Dismiss
[Docket 16]. For the reasons stated below, ABISS’s motion to dismiss [Docket 9] is
GRANTED, and the plaintiffs’ motion for leave to file surreply [Docket 16] is DENIED as
moot.
I.
Background
This case is one of several thousand assigned to me by the Judicial Panel on Multidistrict
Litigation. These MDLs involve the use of transvaginal surgical mesh to treat pelvic organ
prolapse or stress urinary incontinence. In this case, the plaintiffs Yvonne Lynn Parker and her
husband, David Parker, allege that Ms. Parker suffered injuries as a result of the Aris
Transobturator Tape System that was implanted in her. (See Compl. [Docket 1], at ¶ 32).
Analytic Biosurgical Solutions (“ABISS”) is a French company that manufactures synthetic
mesh. Between October 12, 2005 and October 2, 2006, ABISS sold its synthetic mesh products
to Mentor Corporation, a Minnesota corporation with its principal place of business in Santa
Barbara, California. (Id. at ¶ 25-26). Currently, ABISS sells and ships this mesh to Coloplast
A/S, a Danish Corporation. 1 (See Dec. of Jean-Marc Beraud [Docket 14-1], at ¶ 3). ABISS has
no involvement in the sale or marketing of the mesh after it is shipped to Coloplast A/S. Id. at ¶
6-10. The Complaint against ABISS alleges the following causes of action: negligence; strict
liability-design defect; strict liability-failure to warn; breach of express warranty; breach of
implied warranty; unjust enrichment; fraud; negligent misrepresentation; and loss of consortium.
(See Compl. [Docket 1]). In the instant motion, ABISS seeks to dismiss the plaintiffs’
Complaint, asserting that there is no basis for personal jurisdiction. (See Mem. of Law in Supp.
of Specially Appearing Def. ABISS’s Mot. to Dismiss [Docket 10], at 3).
II.
Legal Standard
A.
Motion to Dismiss
When a defendant moves to dismiss for lack of personal jurisdiction pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure, “the plaintiff ultimately bears the burden of
proving to the district court judge the existence of jurisdiction over the defendant by a
preponderance of the evidence.” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416
F.3d 290, 294 (4th Cir. 2005). When the court addresses the jurisdictional question based on the
“motion papers, supporting legal memoranda and the relevant allegations of a complaint, the
burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis
to survive the jurisdictional challenge.” Id. In those circumstances, “courts must construe all
1
Coloplast A/S and Coloplast Manufacturing, US, LLC were dismissed without prejudice by
Pretrial Order # 28.
2
relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and
draw the most favorable inferences for the existence of jurisdiction.” Id. (internal quotation
marks omitted).
B.
Choice of Law
Under 28 U.S.C. § 1407, this court has authority to rule on pre-trial motions. In
multidistrict litigation cases such as this, personal jurisdiction is determined by reference to the
law of the transferor forum. In re Plumbing Fixtures Litig., 342 F. Supp. 756, 758 (J.P.M.L.
1972). Specifically, “in cases that are consolidated for pretrial purposes under 28 U.S.C. § 1407,
a transferee court can exercise personal jurisdiction only to the same extent as the transferor
court could.” In re Sterling Fisher & Co., Inc. Sec. Litig., 222 F. Supp. 2d 289, 300 (E.D.N.Y.
2002). This case was transferred to this court from the District of Minnesota and therefore, I
apply Minnesota law for the purpose of determining the issue of personal jurisdiction.
C.
Personal Jurisdiction
“A federal court may assume jurisdiction over a foreign defendant only to the extent
permitted by the forum state’s long-arm statute and by the Due Process Clause of the
Constitution.” Dakota Indus., Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994). The
Minnesota long-arm statute “extend[s] jurisdiction to the maximum limit consistent with due
process.” Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc., 65 F.3d 1427, 1431 (8th Cir.
1995). Consequently, the statutory inquiry merges with the constitutional inquiry, and the court
must determine whether exercising personal jurisdiction over the defendant is consistent with the
Due Process Clause. See id.
“Due process allows a court to exercise personal jurisdiction over a non-resident
defendant when the defendant has certain minimum contacts with [the state] such that the
3
maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
Id. at 1431 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal quotation
marks omitted). The Supreme Court has recognized that this protection provided by the Due
Process Clause extends to foreign corporations. See Goodyear Dunlop Tires Ops., S.A. v. Brown,
131 S. Ct. 2846, 2852–54 (2011).
There are two approaches to finding jurisdiction over persons outside a state’s borders:
specific and general jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 15.
(1985). If the suit does not arise out of the defendant’s contacts with the state, the defendant must
have “continuous and systematic” contacts with the state to confer general jurisdiction.
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-416 (1984). On the other
hand, if the defendant’s contact with the state is the basis of the suit, then specific jurisdiction
applies. Burger King, 471 U.S. at 472. The Eighth Circuit applies a five-factor inquiry to
determine whether specific jurisdiction exists focusing on:
(1) the nature and quality of [the defendant's] contacts with the forum state; (2)
the quantity of such contacts; (3) the relation of the cause of action to the
contacts; (4) the interest of the forum state in providing a forum for its residents;
and (5) [the] convenience of the parties.
Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073-74 (8th Cir. 2004) (quoting Burlington
Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir. 1996)). The first three factors are
of greatest importance and are used to determine whether the defendant purposefully availed
itself of the protections of the forum. See id.
III.
Analysis
A.
Personal Jurisdiction over ABISS
The plaintiffs allege that ABISS is subject to general jurisdiction in Minnesota because
ABISS’s FDA agent is located in Minnesota. (See Mem. of Law in Supp. of Pls.’ Resp. to Def.
4
ABISS’s Mot. to Dismiss [Docket 13]). However, this agent is an employee of Coloplast Corp.,
not ABISS, and her role in Minnesota does not rise to a sufficient level to create systematic and
continuous contacts between ABISS and Minnesota. See Goodyear, 131 S. Ct. at 2853–54
(stating that a corporation is subject to general jurisdiction in a forum “in which the corporation
is fairly regarded as at home”). Thus, the inquiry centers on whether ABISS is subject to specific
jurisdiction in Minnesota.
To support their argument that ABISS is subject to specific jurisdiction in Minnesota, the
plaintiffs point to an “Exclusive Supply Agreement” ABISS entered into with Mentor, a
Minnesota corporation with its principal place of business in California. (See Mem. of Law in
Supp. of Pls.’ Resp. to Def. ABISS’s Mot. to Dismiss [Docket 13], at 5). Ms. Parker was
implanted with the Aris sling on May 12, 2006, five days prior to the purchase agreement
between Coloplast A/S and Mentor whereby Mentor transferred certain assets—including the
Exclusive Supply Agreement with ABISS—to Coloplast A/S. 2
A recent decision of the United States Supreme Court is relevant to the instant personal
jurisdiction analysis. In J. McIntyre Machinery, Ltd. v. Nicastro, the United States Supreme
Court considered whether New Jersey had personal jurisdiction over a foreign manufacturer. 131
S. Ct. at 2785 (2011). The New Jersey Supreme Court found that New Jersey’s courts could
exercise personal jurisdiction over a foreign manufacturer “so long as the manufacturer ‘knows
or reasonably should know that its products are distributed through a nationwide distribution
system that might lead to those products being sold in any of the fifty states.’” Id. (quoting
Nicastro v. McIntyre Mach. Am., Ltd., 987 A.2d 575, 591–92 (N.J. 2010)). Applying this logic,
2
ABISS argues, in its response to the plaintiffs’ motion for leave to file surreply, that the plaintiffs’
arguments are inconsistent: if the plaintiffs rely on the relationship between ABISS and Mentor, then the
plaintiffs cannot rely on any relationship between ABISS and Coloplast. In any event, there are
insufficient minimum contacts to assert personal jurisdiction over ABISS in this matter.
5
the New Jersey Supreme Court “concluded that a British manufacturer of scrap metal machines
was subject to jurisdiction in New Jersey, even though at no time had it advertised in, sent goods
to, or in any relevant sense targeted the State.” Id.
The United States Supreme Court reversed, finding no personal jurisdiction. Id. (plurality
opinion); id. at 2791 (concurring opinion). Justice Kennedy delivered the plurality opinion with
three Justices joining. Id. at 2783. Justice Breyer delivered an opinion, joined by Justice Alito,
concurring in the judgment. Id. at 2791. Justice Ginsburg delivered an opinion, joined by two
Justices, dissenting. Id. at 2794. In J. McIntyre, Nicastro’s counsel stated several facts in support
of the state’s assertion of jurisdiction:
First, an independent company agreed to sell J. McIntyre’s machines in the United
States. J. McIntyre itself did not sell its machines to buyers in this country beyond
the U.S. distributor, and there is no allegation that the distributor was under J.
McIntyre’s control.
Second, J. McIntyre officials attended annual conventions for the scrap recycling
industry to advertise J. McIntyre’s machines alongside the distributor. The
conventions took place in various states, but never in New Jersey.
Third, no more than four machines . . . , including the machine that caused the
injuries are the basis for this suit, ended up in New Jersey.
Id. at 2786. Additionally, the New Jersey Supreme Court noted that “J. McIntyre held both
United States and European patents on its recycling technology” and “the U.S. distributor
structured its advertising and sales efforts in accordance with J. McIntyre’s direction and
guidance whenever possible, and [] at least some of the machines were sold on consignment to
the distributor.” Id. (internal citations and quotation marks omitted).
Justice Kennedy, in reviewing the Supreme Court’s jurisprudence on personal
jurisdiction, recognized that a “defendant’s transmission of goods permits the exercise of
jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it
6
is not enough that the defendant might have predicted its goods will reach the forum State.” Id. at
2788. Furthermore, “personal jurisdiction requires a forum-by-forum, or sovereign-by-sovereign,
analysis.” Id. at 2789. Justice Kennedy specifically recognized in the context of the case before
the Court, “[h]ere the question concerns the authority of a New Jersey state court to exercise
jurisdiction, so it is petitioner’s purposeful contacts with New Jersey, not with the United States,
that alone are relevant.” Id. at 2790. He found that the facts recited above “may reveal an intent
to serve the U.S. market, but they do not show that J. McIntyre purposefully availed itself of the
New Jersey market.” Id.
Likewise, Justice Breyer found the facts insufficient to demonstrate that it was
“constitutionally proper to exercise jurisdiction over petitioner J. McIntyre . . . .” Id. at 2791.
Justice Breyer did not find the “something more” that is required under Supreme Court
precedent. Id. There were no regular sales in New Jersey, no “special state-related design,
advertising, advice, marketing, or anything else.” Id. Furthermore, Justice Breyer found that J.
McIntyre had not otherwise purposefully availed itself within New Jersey, and it had not
“delivered its goods in the stream of commerce ‘with the expectation that they will be purchased’
by New Jersey users.” Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297–298 (1980)).
Justice Breyer did not join in the plurality opinion’s reasoning because in his view, the
case could be determined by the Court’s precedents. Id. at 2791. Justice Breyer found it too strict
to preclude jurisdiction in every case “where a defendant ‘does not inten[d] to submit to the
power of a sovereign’ and cannot ‘be said to have targeted the forum,’” especially in light of the
issues presented by sales over the internet. Id. at 2793 (quoting id. at 2788). And he did not agree
with the New Jersey Supreme Court because its reasoning was too broad, subjecting a defendant
7
to jurisdiction if it “knows or reasonably should know that its products are distributed through a
nationwide distribution system that might lead to those products being sold in any of the fifty
states.” Id. (citation omitted). Justice Breyer was concerned that such a blanket rule failed to take
into account the size of the manufacturer, the distance of the forum, and the number of items that
end up in the particular forum. Id. He continued, “the fact that the defendant is a foreign, rather
than a domestic, manufacturer makes the basic fairness of an absolute rule yet more uncertain.”
Id. at 2793–94.
The contacts ABISS had with Minnesota are similar to, but still weaker than, those J.
McIntyre had with New Jersey. First, ABISS did not have a United States distributor, but rather,
it sold its product to Mentor, which assumed full ownership of the product and chose how and
whether to distribute it. Second, ABISS’s representatives never attended any trade shows or
conferences in the United States. Finally, there is no evidence that ABISS directed the sales or
marketing efforts of Mentor.
With respect to the plaintiffs’ argument that Mentor is a Minnesota corporation, and
therefore ABISS targeted Minnesota when it entered into the Exclusive Supply Agreement with
Mentor, the Eighth Circuit has held that “merely entering into a contract with a forum resident
does not provide the requisite contacts between a defendant and the forum state.” Iowa Elec.
Light & Power Co. v. Atlas Corp., 603 F.2d 1301, 1303 (8th Cir. 1979). The court went on to
explain that “this is particularly true when all elements of the defendant's performance are to take
place outside of the forum.” Id. at 1303-04. Where Mentor’s principal place of business is in
California, and all elements of ABISS’s performance occur in France, the requisite contacts
between ABISS and Minnesota clearly do not exist.
Viewing the allegations in the light most favorable to the plaintiffs, and considering the
8
five-factor test employed in the Eighth Circuit, there are simply insufficient contacts with
Minnesota to assert personal jurisdiction over ABISS. The allegations do not suggest anything
more than the possibility that ABISS’s products might be sold in Minnesota. Furthermore, there
is nothing in the record indicating the extent to which the final products were sold in Minnesota.
Factual allegations arising to a greater level than this were found insufficient to exert personal
jurisdiction over a defendant by a majority of the Justices in McIntyre. 131 S. Ct. at 2788
(Kennedy, J., plurality) (“[A]s a general rule, it is not enough that the defendant might have
predicted that its goods will reach the forum State.”); 131 S. Ct. at 2793 (Breyer, J., concurring
in judgment) (disagreeing with the proposition that a defendant that “‘knows or reasonably
should know that its products are distributed through a nationwide distribution system that might
lead to those products being sold in any of the fifty states’” is subject to personal jurisdiction for
a products-liability action (quoting Nicastro v. McIntyre Mach. Am., 987 A.2d 575, 592 (N.J.
2010)). Thus, the facts favor a finding that any contacts with Minnesota were a result of ABISS
setting its products adrift, which is not enough for this court to exercise personal jurisdiction over
it.
The plaintiffs rely on Clune v. Alimak in support of their argument that ABISS is subject
to personal jurisdiction anywhere in the United States, including Minnesota. 233 F.3d 538, 544
(8th Cir. 2000). However, the stream-of-commerce reasoning advanced in Clune was rejected by
J. McIntyre, which requires that “personal jurisdiction requires a forum-by-forum, or sovereignby-sovereign, analysis.” J. McIntyre, 131 S. Ct. at 2789. Because the fifty states and the United
States are distinct sovereigns, “a litigant may have the requisite relationship with the United
States Government but not with the government of any individual State.” See id.
Justice Kennedy recognized that “[p]ersonal jurisdiction . . . restricts ‘judicial power not
9
as a matter of sovereignty, but as a matter of individual liberty,’ for due process protects the
individual’s right to be subject only to lawful power.” J. McIntyre, 131 S. Ct. at 2789 (quoting
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)).
“[T]he stream-of-commerce metaphor cannot supersede either the mandate of the Due Process
Clause or the limits on judicial authority that Clause ensures. . . . [T]he Constitution commands
restraint before discarding liberty in the name of expediency.” Id. 2791. In light of J. McIntyre
and the foregoing reasoning, I FIND Clune’s reasoning unpersuasive.
IV.
Conclusion
For the reasons above, it is ORDERED that ABISS’s motion to dismiss [Docket 9] is
GRANTED, and it is ORDERED that the plaintiffs’ motion for leave to file surreply [Docket
16] is DENIED as moot.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
10
July 26, 2013
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?