Barnett, Robyn v. Karl Storz Endoscopy America, Inc. et al
Filing
35
ORDER denying as moot 5 Motion to Dismiss; granting 20 Motion to Dismiss. Plaintiff's complaint is dismissed without prejudice. The claims against defendant HEI, Inc. are STAYED pending action by the bankruptcy court. Case closed. Signed by District Judge William M. Conley on 3/27/15. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBYN L. BARNETT,
v.
Plaintiff,
ORDER
15-cv-36-wmc
KARL STORZ ENDOSCOPY AMERICA,
INC., KARL STORZ GBBH & CO. KG,
ETHICON, INC., ETHICON WOMEN’S
HEALTH AND UROLOGY, ETHICON ENDO
SURGERY, INC., JOHNSON & JOHNSON
SERVICES, JOHNSON & JOHNSON,
MEDTECH GROUP, INC., HEI, INC.,
Defendants.
In this civil action, plaintiff Robyn L. Barnett asserts claim of negligence and strict
liability, as well as claims under Wisconsin Deceptive Trade Practices Act, Wis. Stat. §
100.18 et seq., all arising out of defendants’ design, manufacture, labeling, marketing,
distribution or sale of a Laparoscopic Power Morcellator, which was used on plaintiff
during a surgical procedure on October 5, 2011. (Am. Compl. (dkt. #1-2).) Despite
filing her original complaint in Pierce County Wisconsin Circuit Court on October 3,
2014, and filing an amended complaint on December 17, 2014, plaintiff did not attempt
service on at least some of the defendants until December 2014. The case was removed
to this court on January 16, 2015, on the basis of this court’s diversity jurisdiction under
28 U.S.C. § 1332(a). (Not. of Removal (dkt. #1).) Before the court are two motions to
dismiss, one by defendants Karl Storz Endoscopy America, Inc. (dkt. #5), which is now
moot, 1 and the other by defendants Ethicon Endo Surgery, Inc., Ethicon Women’s
Health and Urology, Ethicon, Inc., Johnson & Johnson, Johnson & Johnson Services, and
Medtech Group, Inc. (dkt. #20). 2
In both motions, defendants contend that the court should dismiss the case
against them for lack of personal jurisdiction and deficient process under Federal Rules of
Civil Procedure 12(b)(2), (b)(4), and (b)(5), because plaintiff failed to serve an
authenticated copy of the summons and complaint within 90 days as required by Wis.
Stat. § 801.02(1). Plaintiff acknowledges this failure in response to both motions, but
asks the court to grant defendants’ motions to dismiss without prejudice and to find that
“our subsequent filing relate[s] back to the original filing of the Complaint.”
(Pl.’s
Responses (dkt. ##18, 30).)
“Federal courts acquire personal jurisdiction only to the extent the state law
authorizes service of process.” United Rope Distributors, Inc. v. Seatriumph Marine Corp.,
930 F.2d 532, 536 (7th Cir. 1991); see also Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th
Cir. 1986) (“In determining the validity of service prior to removal, a federal court must
apply the law of the state under which the service was made, and the question of
amenability to suit in diversity actions continues to be governed by state law even after
1
Plaintiff filed a notice of voluntary dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(1) as to her claims against defendants Karl Storz Endoscopy America,
Inc. and Karl Storz GmbH & Go. KG. (Dkt. #29.) This notice, therefore, moots Karl
Storz’s pending motion to dismiss.
2
Defendant HEI has not answered or otherwise appeared, but has filed a suggestion of
bankruptcy. (Dkt. #16.) Plaintiff has not, however, indicated that HEI was unique in
being served timely. In any event, the claims against HEI will be stayed and
administratively closed pending guidance from the bankruptcy court.
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removal.”). In American Family Mutual Insurance Company v. Royal Insurance Company of
America, 167 Wis. 2d 524, 481 N.W.2d 629 (1992), the Wisconsin Supreme Court
reviewed the requirement of serving an authenticated copy of the summons and
complaint under § 801.02(1). The court held that a plaintiff’s failure to comply with this
requirement “constitutes a fundamental error which necessarily precludes personal
jurisdiction regardless of the presence or absence of prejudice.” Id. at 534, 481 N.W.2d
at 633. Moreover, while harsh, it is not possible for plaintiff to cure this defect since (1)
the 90-day period for service has lapsed, and (2) that time period may not be enlarged.
See Wis. Stat. § 801.15(2)(a).
Accordingly, the court agrees with defendants that
dismissal for lack of personal jurisdiction, insufficient process and insufficient service of
process is warranted.
Because the court dismisses this case due to lack of personal jurisdiction without
reaching the merits of the alleged claims, plaintiff is right that the case must be dismissed
without prejudice to refiling. See Sikhs v. Justice v. Badal, 736 F.3d 743, 751 (7th Cir.
2013) (“Ordinarily a dismissal for want of personal jurisdiction as a result of improper
service is without prejudice.”); Sentry Corp. v. Harris, 802 F.2d 229, 246 (7th Cir. 1986)
(affirming dismissal of claims without prejudice where plaintiff failed to comply with
Wis. Stat. § 801.02(1)). Plaintiff also asks the court to enter some sort of order finding
that the “subsequent filing relate[s] back to the original filing of the Complaint.” (Pl.’s
Responses (dkt. ##18, 30).) Plaintiff cites no legal authority for such an order, nor
could this court find such support. Indeed, plaintiff’s request falls squarely within an
advisory opinion, since there is no refiled complaint, nor is it clear that if the complaint is
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refiled it will be in this court (or be removed to this court). See Halbrucker v. Waste Mgmt.
of Wis., No. 06-C-796, 2007 WL 313930, at *1 (E.D. Wis. Jan. 29, 2007) (refusing to
consider statute of limitations defense for complaint to be refiled, finding that “at this
juncture” such a ruling “would amount to an advisory opinion”).
If plaintiff opts to refile her complaint, it will be up to that court to determine the
merits of any asserted statute of limitations’ defense, including plaintiff’s right, if any, to
the filing date being related back to the original filing date in this dismissed action.
Accordingly,
ORDER
IT IS ORDERED that:
1) defendant Karl Storz Endoscopy America, Inc.’s motion to dismiss (dkt. #5) is
DENIED AS MOOT in light of plaintiff’s notice of voluntary dismissal;
2) defendants Ethicon Endo Surgery, Inc., Ethicon Women’s Health and Urology,
Ethicon, Inc., Johnson & Johnson, Johnson & Johnson Services, and Medtech
Group, Inc.’s motion to dismiss (dkt. #20) is GRANTED.
Plaintiff’s
complaint is dismissed without prejudice;
3) the claims against defendant HEI, Inc. are STAYED pending action by the
bankruptcy court; and
4) the clerk of court is directed to close this case.
Entered this 27th day of March, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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