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Greenwood v. Davol, Inc.

United States District Court, E.D. Missouri, Northern Division

January 18, 2018

DAVOL, INC., et al., Defendants.



         Plaintiff was implanted with a Davol Bard Mesh PerFix Plug during hernia repair surgery in 2003. Plaintiff alleges that the defective condition of the mesh plug caused him to have emergency surgery to remove a hard mass containing infected mesh and a perforated appendix and another hernia repair in 2016. Plaintiff alleges he has also had further treatment for infection and pain since that time. He brings claims for negligence, strict liability, and breach of warranty under Missouri law. He also seeks punitive damages.

         Named as defendants are Davol and Bard, the designers and manufacturers of the mesh plug, and Red Oak.[1] Plaintiff alleges that Red Oak is a North Carolina corporation and a wholly owned subsidiary of Bard. According to plaintiff, Red Oak supplied defective polypropylene resin to Bard and Davol to make the mesh plug. [Doc. #1 at Para. 4]. Red Oak denies that it is a subsidiary of Bard and that it sold polypropylene resin to Bard and Davol. Red Oak asserts that it has no contacts whatsoever with Missouri and accordingly moves to dismiss plaintiff's complaint for lack of personal jurisdiction. In opposition to dismissal, plaintiff argues that Red Oak is the alter ego of Bard and Davol and that their Missouri contacts should therefore be attributed to Red Oak. According to plaintiff, Bard and Davol's contacts are sufficient to support personal jurisdiction over Red Oak in this case. For the reasons stated herein, the motion to dismiss will be granted.

         Legal Standards

         To survive a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), a plaintiff must make a prima facie showing of personal jurisdiction by pleading facts sufficient to support a “reasonable inference that the defendant[ ] can be subjected to jurisdiction within the state.” K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir. 2011). “When personal jurisdiction is challenged by a defendant, the plaintiff bears the burden to show that jurisdiction exists.” Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014). “A plaintiff's prima facie showing must be tested, not by the pleadings alone, but by affidavits and exhibits supporting or opposing the motion.” Id. (citations omitted). The court must view the evidence “in a light most favorable to the plaintiff and resolve factual conflicts in the plaintiff's favor; however, the party seeking to establish the court's personal jurisdiction carries the burden of proof and that burden does not shift to the party challenging jurisdiction.” Id.

         “Personal jurisdiction in a diversity case exists only to the extent permitted by the long-arm statute of the forum state and by the Due Process Clause.” K-V Pharm., 648 F.3d at 592 (citations omitted). “[B]ecause the Missouri long-arm statute authorizes the exercise of jurisdiction over non-residents to the extent permissible under the due process clause, ” the Court will consider “whether the assertion of personal jurisdiction would violate due process.” Aly v. Hanzada for Imp. & Exp. Co., LTD, 864 F.3d 844, 849 (8th Cir. 2017) (citations omitted). Due process requires that there be “sufficient minimum contacts between a defendant and the forum state so that jurisdiction over a defendant with such contacts may not offend ‘traditional notions of fair play and substantial justice.” Id. (citations omitted). Specifically, courts consider five factors: “(1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relationship of those contacts with the cause of action; (4) Missouri's interest in providing a forum for its residents; and (5) the convenience or inconvenience to the parties.” Id. Courts give “significant weight to the first three factors.” Fastpath, Inc., 760 F.3d at 821.

         Relevant Jurisdictional Facts

         Although plaintiff alleges that Red Oak is a subsidiary of Bard and supplied defective polypropylene resin to manufacture the PerFix Plug, the uncontroverted evidence establishes that Red Oak was incorporated in 1989 by Alex and Lillian Barnette of Huntersville, North Carolina. (Doc. 20-1). The Barnettes are the sole owners of Red Oak. (Id.). Red Oak is not a subsidiary of Bard or any other corporation, and no other individuals or corporations have ever owned any interest in Red Oak. (Id.). Davol and Bard do not share any managers, officers, or directors with Red Oak, nor do they have common bank accounts, financial statements, or interests. (Doc. 37-1). Davol and Bard do not finance the operations of Red Oak, pay Red Oak's expenses, or share in Red Oak's profits. (Id.). Red Oak maintains its principal place of business in North Carolina. (Doc. 20-1).

         Red Oak does not sell polypropylene resin as alleged by plaintiff. Instead, it manufactures monofilament extrusion machines and synthetic monofilaments made out of raw materials, including resin. (Doc. 20-1). The manufacture and sale of extrusion machines account for about one-third of the company's revenues. (Doc. 37-1). Davol is one of Red Oak's customers. It purchases monofilaments from Red Oak and specifies the resins Red Oak should use in the manufacturing process. (Doc. 20-1). Davol does not, however, control Red Oak's processes for the manufacture of the monofilaments. (Doc. 37-1). Two of Red Oak's three manufacturing lines were made by Red Oak and then sold to Davol in approximately 1998 and 2005. (Id.). Red Oak manufactures Davol's monofilaments on these two lines and uses the third manufacturing line for other customers and purposes. (Id.).[2] Red Oak obtains the resin for Davol from Texas, Tennessee, and New York and produces the monofilaments in North Carolina. (Doc. 20-1). Red Oak ships the monofilaments to Davol in New Jersey, Puerto Rico, and Rhode Island. (Id.). To be used in the PerFix Plug, the monofilament produced by Red Oak must undergo additional manufacturing processes by Davol, and Red Oak has no knowledge of, or participation in, these processes. (Id.).

         Red Oak does not ship Davol's monofilaments to Missouri, nor has it ever sold any of its manufacturing machines to a purchaser in Missouri. (Doc. 37-1). Red Oak does not own or lease any property in Missouri and has never maintained an office or any employees or agents in Missouri. (Id.). Red Oak is not registered to do business in Missouri and does not advertise or solicit business in Missouri. Red Oak has never transacted any business in Missouri or made any contract in Missouri. (Id.).


         After reviewing the evidence and briefs submitted by the parties, the Court concludes that it cannot exercise personal jurisdiction over Red Oak. Although plaintiff alleges that Red Oak is a subsidiary of Bard, the uncontroverted evidence demonstrates that Red Oak is a separate corporation wholly owned by the Barnette family, not a subsidiary of either Bard or Davol. “[C]ourts ordinarily protect the separate legal identities of individual corporations.” Levine Hat Co. v. Innate Intelligence, LLC, No. 4:16-CV-1132 (CEJ), 2017 WL 3021526, at *4 (E.D. Mo. July 17, 2017). Plaintiff offers no evidence to contradict the fact that Red Oak is owned by the Barnettes, not Bard. Instead, in its reply brief plaintiff argues that Red Oak is the alter ego of Bard and Davol under Missouri law such that their separate corporate identities should be disregarded for jurisdictional purposes.

         Plaintiff's argument fails to establish personal jurisdiction over Red Oak in this case. While there are situations in which one corporation “shows such domination and control over another that the latter corporation becomes an adjunct or alter ego of the first, ” Real Estate Inv'rs Four, Inc. v. Am. Design Grp. Inc., 46 S.W.3d 51, 56 (Mo.Ct.App. 2001), plaintiff has not submitted any evidence that the companies here are alter egos, nor has plaintiff requested jurisdictional discovery to establish such a connection.[3]

         “Personal jurisdiction can be properly asserted over a corporation if another is acting as its alter ego, even if that alter ego is another corporation.” Epps v. Stewart Information Services Corp., 327 F.3d 642, 649 (8th Cir. 2003) (citing Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634, 637 (8th Cir. 1975)). ‚ÄúState ...

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