United States District Court, W.D. Missouri, Western Division
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
D. SMITH, SENIOR JUDGE.
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
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.
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.
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.
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.
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.
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.
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.
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
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 ...