United States District Court, S.D. West Virginia, Charleston Division
SANDRA E. GARNES, et al., Plaintiffs,
BIOMET ORTHOPEDICS, LLC Defendant.
R. GOODWIN, UNITED STATES DISTRICT JUDGE
MEMORANDUM OPINION AND ORDER
before the court is a Motion to Dismiss [ECF No. 87] filed by
Defendant Zimmer Biomet Holdings, Inc.
(“Zimmer”). The deadline to file a response to
the Motion has passed, and, as of the date of this Order, the
plaintiffs still have not filed a response. For the reasons
that follow, the Motion is GRANTED.
product liability action involves the alleged failure of a
Biomet M2a-38 hip implant. The plaintiffs' First Amended
Complaint (“Amended Complaint”) [ECF No. 84]
filed on February 19, 2019 raises claims of strict product
liability, negligence, breach of implied warranties, breach
of express warranty, and a violation of the West Virginia
Consumer Credit and Protection Act against several
defendants. The Amended Complaint asserts claims against
Zimmer based on allegations that “each Defendant”
in the action was an alter ego of each other entity and was
engaged in a single venture. The Amended Complaint alleges
that Zimmer is an Indiana corporation with its principal
place of business in Indiana. On March 11, 2019, Zimmer moved
to dismiss the Amended Complaint for a lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure
a defendant moves to dismiss for lack of personal
jurisdiction, 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).
“The facts pertinent to defendants' motion to
dismiss are appropriately derived from the complaint,
exhibits attached to the complaint, matters of public record,
and the affidavits defendants submitted to challenge the
existence of personal jurisdiction.” Combe Inc. v.
Dr. August Wolff GmbH & Co. KG Arzneimittel, 283
F.Supp.3d 519, 520 n.1 (E.D. Va. 2017); see also
Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553,
558 (4th Cir. 2014) (finding that courts may consider
affidavits in assessing whether personal jurisdiction
district court to validly assert personal jurisdiction over a
non-resident defendant, two conditions must be satisfied.
In re Celotex Corp., 124 F.3d 619, 627 (4th Cir.
1997). First, a state long-arm jurisdiction statute must
authorize jurisdiction over the non-resident defendant.
Id. Second, the court's exercise of personal
jurisdiction over the non-resident defendant must
“comport with the Due Process Clause.”
Id. “Because the West Virginia long-arm
statute is coextensive with the full reach of due process, it
is unnecessary in this case to go through the normal two-step
formula for determining the existence of personal
jurisdiction.” Id. at 627-28 (citing
Pittsburgh Terminal Corp. v. Mid Allegheny Corp.,
831 F.2d 522, 525 (4th Cir. 1987)). Consequently, the
statutory inquiry merges with the constitutional inquiry, and
the two inquires essentially become one. See id. The
court's inquiry therefore centers on whether exercising
personal jurisdiction over Zimmer is consistent with the Due
court's exercise of jurisdiction over a nonresident
defendant comports with due process if the defendant has
‘minimum contacts' with the forum, such that to
require the defendant to defend its interests in that state
‘does not offend traditional notions of fair play and
substantial justice.'” Carefirst of Md., Inc.
v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 397
(4th Cir. 2003) (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). “Whether a
defendant possesses such minimum contacts is analyzed by
looking to whether the plaintiff seeks to establish
‘specific' or ‘general'
jurisdiction.” Byard v. Verizon W.Va., Inc.,
No. 1:11CV132, 2012 WL 1085775, at *8 (N.D. W.Va. Mar. 30,
2012). Specific jurisdiction occurs when the defendant's
contacts with the forum state form the basis of the suit.
Carefirst, 334 F.3d at 397. In contrast, where the
defendant's contacts are unrelated to the basis of the
suit, a court must look to the requirements of general
court finds that the plaintiffs have failed to establish that
this court has either specific or general jurisdiction over
Fourth Circuit has applied a three-part test to determine
whether specific jurisdiction exists: “(1) the extent
to which the defendant purposefully availed itself of the
privilege of conducting activities in the State; (2) whether
the plaintiffs' claims arise out of those activities
directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally
reasonable.” Mitrano v. Hawes, 377 F.3d 402,
407 (4th Cir. 2004). The “touchstone” of the
specific jurisdiction analysis is whether the defendant
“engaged in some activity purposefully directed toward
the forum state.” In re Celotex, 124 F.3d at
the plaintiffs have not alleged that Zimmer had any
relationship to the M2a-38 hip implant at issue in this case
or that Zimmer engaged in any activity purposefully directed
toward West Virginia. Plaintiff Sandra E. Garnes was
implanted with a Biomet M2a-38 device in 2008. However,
Zimmer had no ownership or control of any Biomet entity until
June 2015 and thus had no role in the design, manufacture,
promotion, sale, or distribution of the Biomet hip device at
issue. See Decl. Matthew T. Albaugh [ECF No. 87-1]
(“Albaugh Declaration”), Ex. A. Moreover, a
search of the West Virginia Secretary of State's webpage
shows that Zimmer is not ...