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Oliver v. Ethicon, Inc.

United States District Court, S.D. West Virginia, Charleston Division

July 27, 2017

SYLVIA OLIVER, Plaintiff,
v.
ETHICON, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER (DISMISSING WITHOUT PREJUDICE FOR LACK OF PERSONAL JURISDICTION)

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE.

         Pending before the court is the Motion to Dismiss for Lack of Personal Jurisdiction [ECF No. 35] filed by defendants Ethicon, Inc. and Johnson & Johnson (collectively “Ethicon”). The plaintiff has responded and Ethicon has replied making this matter ripe for review. For the reasons stated below, this motion is GRANTED.

         I. Background

         On October 24, 2012, this case was transferred to one of seven MDLs assigned to me by the Judicial Panel on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven MDLs, there are more than 50, 000 cases currently pending, approximately 30, 000 of which are in the Ethicon MDL, MDL 2327.

         In an effort to efficiently and effectively manage this massive MDL, the court decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready (that is, after the court has ruled on all summary judgment motions, among other things), it can then be promptly transferred or remanded to the appropriate district for trial. To this end, the court ordered the plaintiffs and defendants to submit a joint list of 400 of the oldest cases in the Ethicon MDL that name only Ethicon, Inc., Ethicon, LLC, and/or Johnson & Johnson. These cases became part of a “wave” of cases to be prepared for trial and, if necessary, remanded. See Pretrial Order No. 248, In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-02327, Feb. 21, 2017, available at http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiff's case was selected as an “Ethicon Wave 5 case.” On May 25, 2017, pursuant to the plaintiff's unopposed motion, the case was removed from Wave 5. [ECF No. 43].

         The plaintiff's case was initially filed on September 21, 2012 in the District of Minnesota seeking recovery against Ethicon for injuries allegedly related to an implanted Gynecare Prolift manufactured by Ethicon. [ECF No. 1]. According to the plaintiff's Amended Short Form Complaint, the plaintiff is an Arkansas resident who was implanted in Arkansas on September 1, 2006. [ECF No. 13] ¶¶ 4, 10-11.

         Defendant Johnson & Johnson is incorporated in New Jersey and has its principal place of business in New Brunswick, New Jersey. [ECF No. 35-3]. Defendant Ethicon, Inc., a Johnson & Johnson subsidiary, is incorporated in New Jersey and has its principal place of business in Somerville, New Jersey. [ECF No. 35-4]. On May 17, 2017, Ethicon moved to dismiss this case for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). [ECF No. 35].

         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) (citing Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). 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. (quoting Combs 886 F.2d at 676). In those circumstances, the court “must construe all 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. (quoting Combs 886 F.2d at 676).

         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). 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 ...


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