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Fullerton v. Smith & Nephew, Inc.

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

May 8, 2019

KEVIN FULLERTON, Plaintiff,
v.
SMITH & NEPHEW, INC., Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Smith & Nephew, Inc.'s Rule 12(b)(2) Motion to Dismiss Plaintiffs Complaint (ECF No. 6). The motion is fully briefed and ready for disposition. Upon thorough consideration of the motion and related memoranda, the Court will grant Defendant's motion and dismiss this action for lack of personal jurisdiction.

         I. Background

         Plaintiff filed this product liability cause of action in federal court alleging strict product liability and negligence against Defendant Smith & Nephew, Inc. ("Smith & Nephew" or "Defendant") in the design and manufacture of the Trigen Intertran Nail assembly ("device"), a medical device used to hold fractured bones in place. (Compl. ¶¶ 1, 5-16, ECF No. 1) Plaintiff asserts that the Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because Plaintiff is a citizen of Missouri, Defendant is a citizen of Delaware and Tennessee, and the amount in controversy exceeds $75, 000. (Id. at p. 1) Plaintiff also contends that the Court has personal jurisdiction over Defendant because Defendant sells medical devices throughout the United States, including the State of Missouri, and Defendant is authorized to do business and has a registered agent in Missouri. (Id.)

         Specifically, Plaintiff alleges that he underwent an open reduction and internal fixation for treatment of a peritrochanteric fracture of his left hip on May 13, 2013 in Mountain Home, Arkansas. (Id. at ¶1) The procedure involved implanting Defendant's device. (Id.) Defendant posted a recall of the device on May 20, 2014. (Id. at ¶ 2) On November 6, 2014, Plaintiff was diagnosed with a hypertrophic non-union in the left hip with failed hardware after the rod of the device had broken in two, and the fracture had displaced. (Id. at ¶ 3) On January 15, 2015 in Cape Girardeau, Missouri, Plaintiff underwent surgery to remove the hardware, realign the fracture, and secure with a proximal femoral plate. (Id. at ¶ 4) On October 10, 2018, Plaintiff filed a Complaint in the United States District Court for the Eastern District of Missouri seeking damages from the alleged defective device. Smith & Nephew filed a motion to dismiss under Fed.R.Civ.P. 12(b)(2) on November 2, 2018, arguing that it is not subject to personal jurisdiction in Missouri.

         II. Legal Standards

         To survive a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure, "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.'" Valez v. Portfolio Recovery Assocs., 881 F.Supp.2d 1075, 1080 (E.D. Mo. 2012) (quoting K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir. 2011) (internal quotation and citations omitted)). Where '"the district court does not hold a hearing and instead relies on pleadings and affidavits, ... the court must look at the facts in the light most favorable to the nonmoving party, and resolve all factual conflicts in favor of that party.'" Pangaea, Inc. v. Flying Burrito LLC, 647 F.3d 741, 745 (8th Cir. 2011) (quoting Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991) (internal citations omitted)). However, the party seeking to establish personal jurisdiction carries the burden of proof, and that burden does not shift to the party that challenges jurisdiction. Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014) (citation omitted).

         "Personal jurisdiction can be specific or general." Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th Cir. 2011). Under the general jurisdiction theory, "a court may hear a lawsuit against a defendant who has 'continuous and systematic' contacts with the forum state, even if the injuries at issue in the lawsuit did not arise out of the defendant's activities directed at the forum." Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004) (citation omitted). However, a corporation that simply operates in many places cannot be deemed at home in all those places for purposes of general jurisdiction. Daimler AGv. Baumann, 571 U.S. 117, 139 (2014).

         Specific jurisdiction, on the other hand, requires the suit to arise out of or relate to the defendant's contacts with the forum state. Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773, 1780, (2017) (citing Daimler, 571 U.S. at 127). '"Specific personal jurisdiction can be exercised by a federal court in a diversity suit only if authorized by the forum state's long-arm statute and permitted by the Due Process Clause of the Fourteenth Amendment.'" Fastpath, Inc., 760 F.3d at 820 (quoting Dairy Farmers of America, Inc. v. Bassett & Walker Int'l, Inc., 702 F.3d 472, 475 (8th Cir.2012)). "Missouri has construed its long-arm statute to confer jurisdiction to the fullest extent permitted by the United States Constitution." Helenthal v. Polk, No. 4:08-CV-1791 CEJ, 2010 WL 546313, at *1 (E.D. Mo. Feb. 9, 2010) (citations omitted). Due process requires that minimum contacts exist between a nonresident defendant and the forum states such that the exercise of personal jurisdiction is consistent with traditional notions of fair play and substantial justice. Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607 F.3d 515, 518 (8th Cir. 2010) (citations omitted). "'Sufficient contacts exist when the defendant's conduct and connection with the forum state are such that [it] should reasonably anticipate being haled into court there.'" Id. (quoting Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994)). A defendant reasonably anticipates being haled into the forum state's court where the defendant performs some act by which it '"purposefully avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws.'" Id. (quoting Bell Paper Box, 22 F.3d at 818-19).

         III. Discussion

         In its response in opposition to Defendant's motion to dismiss, Plaintiff concedes that the Court does not have general jurisdiction over Defendant because Missouri is not Smith & Nephew's home state. (ECF No. 9 ¶ 5) However, Plaintiff asserts that the Court has specific jurisdiction over Smith & Nephew because Defendant sought permission to do business in Missouri by registering with the Missouri Secretary of State. In addition, Plaintiff contends that Defendant committed a tortious act by injuring the Plaintiff with Defendant's device in Missouri. Specifically, Plaintiff argues that although the device was implanted in Arkansas, the tort occurred in Missouri when the device malfunctioned. (Fuller Aff ¶¶ 1-3, ECF No. 9-2)

         Defendant claims that engaging in the design, manufacture, distribution and sale of medical devices throughout the United States and Missouri is insufficient to confer specific personal jurisdiction over Defendant in Missouri. Likewise, Defendant argues that merely registering to do business within the State of Missouri and retaining a registered agent are not sufficient to establish personal jurisdiction. Finally, Smith & Nephew asserts that it did not commit a tortious act in Missouri because Plaintiff presents no evidence that the device failed in Missouri, only that the subsequent surgery took place in Missouri. Defendant thus claims that exercising jurisdiction would violate its due process rights.

         The Court finds that it lacks personal jurisdiction over Defendant Smith & Nephew such that dismissal under Federal Rule of Civil Procedure 12(b)(2) is warranted. Missouri law requires a court to "conduct two separate inquiries: one inquiry to establish if a defendant's conduct was covered by the long-arm statute, and a second inquiry to analyze whether the exercise of jurisdiction comports with due process requirements." Myers v. Casino Queen, Inc.,689 ...


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