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Holland v. Cook Group, Inc.

United States District Court, W.D. Missouri, Western Division

October 9, 2019

KATHLEEN HOLLAND, et al., Plaintiffs,
v.
COOK GROUP, INC., et al. Defendants.

          ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER VENUE, AND (2) TRANSFERRING THE MATTER TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

          ORTRIE D. SMITH, SENIOR JUDGE.

         Pending is Defendants Ethicon, Inc. and Johnson & Johnson's Motion to Dismiss Plaintiffs' Complaint or, in the Alternative, to Transfer Venue. Doc. #36. For the following reasons, the Court denies Defendants' motion to dismiss but grants their alternative request to transfer the matter to the United States District Court for the Middle District of Alabama.

         I. BACKGROUND

         On February 14, 2013, Plaintiffs Kathleen Holland and Michael Holland filed a Complaint in this Court against Cook Group, Inc.; Cook Incorporated; Cook Biotech, Inc.; Cook Urological Incorporated; Cook Medical Inc.; Ethicon, Inc.; Ethicon, LLC; and Johnson & Johnson. Doc. #1. Plaintiffs' claims and injuries relate to pelvic mesh devices. Id.

         On February 15, 2013, the Judicial Panel on Multidistrict Litigation (“JPML”) was notified of Plaintiffs' lawsuit, which was identified as a potential tag along case to Multidistrict Litigation No. 2327 (hereinafter, “MDL No. 2327”). Doc. #2. On February 20, 2013, the JPML issued an order conditionally transferring this matter to the United States District Court for the Southern District of West Virginia for coordinated and consolidated pretrial proceedings in MDL No. 2327. Doc. #4-1. Some defendants asked the JPML to partially vacate its conditional transfer order, and permit claims against Johnson & Johnson and Ethicon, Inc. (and their related entities) to be transferred to the MDL, but allow claims against Cook Group, Inc. (and related entities) to remain with the transferor courts, such as this Court. Doc. #4-2.

         On March 29, 2013, Defendants executed waivers of service in this matter. Docs. #5-9. On April 8, 2013, Defendants filed an unopposed motion to stay this matter pending disposition of the motion to partially vacate the conditional transfer order in MDL No. 2327. Doc. #4. The Court granted the parties' request. Doc. #10. In June 2013, the JPML denied the motion, and this matter was conditionally transferred to the Southern District of West Virginia for inclusion in MDL No. 2327. Doc. #14.

         In April 2019, the matter was conditionally remanded to this Court with only Plaintiffs' claims against Johnson & Johnson; Ethicon, Inc.; and Ethicon, LLC pending. Docs. #16, 16-2, 16-8; Doc. #41, at 4. In May 2019, the Court granted the parties' joint motion to dismiss Plaintiffs' claims against Ethicon, LLC. Docs. #20-21. On September 5, 2019, Defendants filed a motion to dismiss due to lack of personal jurisdiction or, in the alternative, to transfer this matter to the United States District Court for the Middle District of Alabama. Doc. #36. Plaintiffs oppose Defendants' request for dismissal, arguing they waived their defenses of lack of personal jurisdiction and improper venue. Doc. #41. But Plaintiffs agree with Defendants' alternative request to transfer this case to the Middle District of Alabama.

         II. DISCUSSION

         A. Potential Waiver

         Before addressing the substance of Defendants' motion, the Court must consider Plaintiffs' argument that Defendants waived the defenses of lack of personal jurisdiction and improper venue. Defendants argue these defenses were not waived.

         A party waives certain enumerated defenses, including lack of personal jurisdiction and improper venue, by “failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading….” Fed.R.Civ.P. 12(h)(1)(B). According to the Eighth Circuit, Rule 12(h) “sets only the outer limits of waiver; it does not preclude waiver by implication.” Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (citation omitted). That is, “[a]sserting a jurisdictional defect in the answer d[oes] not preserve the defense in perpetuity.” Id. (citation and internal quotation marks omitted). If the defense is not asserted “seasonably, by formal submission in a cause, or by submission through conduct, ” it “may be lost.” Id. (quoting Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939)). For instance, if a party “literally complies with Rule 12(h)” by asserting lack of personal jurisdiction in its answer but waits to raise the issue until the matter is appealed, the party fails to “comply with the spirit of the rule” and is deemed to have waived that defense. Id.

         Here, Defendants did not expressly waive objections to personal jurisdiction or venue. In MDL No. 2327, Defendants filed a “Master Answer.” Doc. #41-2. Although filed before Plaintiffs commenced this matter, the Master Answer includes the following defenses: “Plaintiffs' claims are barred for lack of personal jurisdiction, ” and “[v]enue in this Court is improper, and this matter should be dismissed on intra-state or interstate forum non conveniens grounds.” Id. at 32-33. Thus, considering the circumstances of this matter, Defendants technically complied with Rule 12(h). But, as set forth supra, technical compliance with Rule 12(h) does not equate to preserving the defense.

         The Court must examine whether Defendants “seasonably” asserted these defenses. Although this matter was filed in 2013, the proceedings before this Court have been minimal. Defendants waived service on March 29, 2013, and on April 8, 2013, they filed a motion asking the Court stay the proceedings pending the outcome of the motion before the JPML. Notably, Plaintiffs agreed to Defendants' request to stay. The stay was never lifted because the matter was transferred to the Southern District of West Virginia. Up until April 2019, the matter was litigated elsewhere.

         In April 2019, the matter returned to this Court. On June 14, 2019, the parties represented to the Court that Defendants had not conducted discovery regarding Plaintiffs' claims while the matter was part of MDL No. 2327. Doc. #25, at 2. Soon thereafter, the Court's Scheduling and Trial Order was filed, permitting the parties to conduct discovery until December 16, 2019. Doc. #26, at 1. In July 2019, Defendants served discovery on Kathleen Holland. Doc. #27. On August 12, 2019, Kathleen Holland ...


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