United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DISMISSING WITHOUT
PREJUDICE FOR LACK OF PERSONAL JURISDICTION)
R. GOODWIN UNITED STATES DISTRICT JUDGE.
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.
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
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,
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].
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.
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].
Motion to Dismiss
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).
Choice of Law
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
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 ...