United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
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
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.
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
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).
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).
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
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)
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.
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 ...