Brune v. Takeda Pharmaceuticals U.S.A., Inc. et al

MEMORANDUM in Opposition re MOTION to Set Aside Default and Default Judgment Under Rule 60 Supplemental

S.D. Miss.March 20, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION JANA BRUNE PLAINTIFF VS. CIVIL ACTION NO. 1:18-CV-00298-LG-RHW TAKEDA PHARMACEUTICALS U.S.A., INC. & JOHN & JANE DOES 1-5 DEFENDANTS SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PLAINTIFF’S RESPONSE TO DEFENDANT’S [18] MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT UNDER RULE 60 COMES NOW, the Plaintiff, by and through undersigned counsel, and files this her Supplemental Memorandum in Support of Plaintiff’s Response to the Defendant’s [18] Motion to Set Aside Default and Default Judgment under Rule 60, and in support hereof would show unto the Court as follows, to wit: INTRODUCTION 1. Plaintiff specifically incorporates herein by reference Plaintiff’s [21] Response to Defendant’s [18] Motion to Set Aside Default and Default Judgment under Rule 60, and Plaintiff’s [22] Memorandum in Support. 2. Plaintiff is providing this supplemental briefing in response to the Court’s [24] Order requesting the Plaintiff provide additional briefing regarding the issues of service of process and personal jurisdiction. Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 1 of 12 2 Personal Jurisdiction exists over Takeda Pharmaceuticals U.S.A., Inc. 3. Takeda Pharmaceuticals U.S.A., Inc. (hereafter “Takeda USA”) is subject to personal jurisdiction in Mississippi because Takeda USA employed the Plaintiff, managed the Plaintiff's retirement and pension account, supervised Plaintiff's employment, and committed a tort in Mississippi. Takeda USA admits that personal jurisdiction exists where “Takeda USA’s contacts with Mississippi [relate] to the employment of individuals in Mississippi.” (See [19] Takeda Pharmaceuticals U.S.A., Inc.’s Brief at pg. 10.) Contrary to the self-serving, false, and misleading affidavit submitted by Takeda USA ([18-4], Affidavit of Jason Maxwell), Takeda USA employed the Plaintiff and conducted business in Mississippi through its sales representatives, managers, and supervisors. The evidence that Takeda USA employed the Plaintiff and managed Plaintiff’s employment are shown by the following: a. 2012 Takeda USA Performance Review for Jana L. Brune (“Exhibit 7”1) This document shows that Plaintiff Jana L. Brune was an employee of Takeda USA during the times relevant to the allegations made in Plaintiff’s Complaint, and that Takeda USA evaluated her performance as Takeda USA’s employee. The Performance review specifically identifies Plaintiff as Takeda USA’s employee. 1 To maintain consistency, the additional exhibits attached to this Supplemental Memorandum begin where the original exhibits to Plaintiff’s [21] Response ended. The first exhibit to this Supplemental Memorandum is “Exhibit 7”. Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 2 of 12 3 Importantly, this document further shows that Takeda USA maintained a sales department in Meridian, MS. The information contained in this document demonstrates that Takeda USA’s self-serving affidavit disavowing any contacts with the State of Mississippi, and denying that Takeda USA employed Plaintiff, is materially false and intentionally calculated to mislead the Court. b. Takeda Pharmaceuticals USA, Cresset/Silver Performance Ranking Report. (“Exhibit 8”) This Takeda USA document is a sale representative ranking report which ranks Takeda USA’s sales representatives by a point system based on their job performance. This report shows that for the designated time frame, Plaintiff was the #1 sale representative for Takeda USA. Again, this evidence shows that Takeda USA employed Plaintiff in Mississippi. Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 3 of 12 4 c. Email from Takeda USA District Manager – Meridian, MS. (“Exhibit 9”). This email was sent from Plaintiff’s District Manager John “Dale” Gallagher providing Tricare reimbursement information for the drugs that Plaintiff sold for Takeda USA. The email shows that Plaintiff was considered part of Takeda USA’s “Team”: See “Exhibit 9”. The email is signed by Mr. Gallagher as a manager for Takeda Pharmaceuticals USA. Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 4 of 12 5 d. Takeda Savings & Retirement Plan, Takeda Pharmaceuticals U.S.A., Inc. – April 2014-June 2014 (“Exhibit 10”) This statement specifically shows that Plaintiff maintained a retirement plan as a benefit of her employment with Takeda USA. See “Exhibit 10”. This statement shows that for the pertinent time frame, Takeda USA matched 100% of Plaintiffs contributions into the retirement plan, and that Plaintiff was fully vested in the Takeda USA retirement plan. e. Takeda USA Senior District Manager Email regarding Plaintiff’s alleged substandard performance (“Exhibit 11”) This document shows that Takeda USA Senior District Manager Mark Magee evaluated Plaintiff’s performance as a Takeda USA employee. Plaintiff does not admit the validity of her alleged substandard performance, but the email does Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 5 of 12 6 conclusively show that Plaintiff was an employee of Takeda USA and that Takeda USA controlled the character of the work and services that Plaintiff provided in Mississippi. f. Takeda Pharmaceuticals USA, 2015 Cresset/Silver, & Climber Award Elite Sales Representatives, Territory Ranks & Points Summary, December 2015 (“Exhibit 12”) This document shows that Takeda USA conducted business in Mississippi through its sales territories labeled “Meridian, MS”; “Jackson N, MS”; and “Jackson S, MS”. Takeda USA’s Territory Ranks & Points Summary again shows that Plaintiff was an employee of Takeda USA. Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 6 of 12 7 4. Additionally, the exhibits that Takeda USA has attached to their [18] Motion to Set Aside further demonstrates that Takeda USA was Plaintiff’s employer and conducted business in the State of Mississippi. Specifically, “Exhibit B” (Doc. [18- 2]) is a letter to counsel for the Plaintiff acknowledging receipt of Plaintiff’s letter to Takeda USA regarding the wrongdoing that forms the basis of Plaintiff claims in this matter. That letter is signed by Attorney Das, “Assistant General Counsel, Employment” and is on Takeda USA letterhead. 5. Next, “Exhibit C” (Doc. [18-3]) is another letter written to counsel for the Plaintiff regarding the claims of the Plaintiff. Although this letter is completely self-serving and Plaintiff does not admit to the credibility of the conclusions it asserts, this letter again confirms that Plaintiff was an employee of Takeda USA. This letter contains detailed allegations regarding the manner in which Plaintiff performed her work for Takeda USA. This letter is also signed on Takeda USA letterhead by Attorney Das as “Assistant General Counsel, Employment, Takeda Pharmaceuticals U.S.A., Inc.” See [18-3] at pg. 4. 6. The true facts demonstrate that at all relevant times, Plaintiff was an employee of Takeda USA and that Takeda USA conducted business in Mississippi. The Mississippi Long Arm Statute specifically provides: Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 7 of 12 8 Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state. Miss. Code Ann. § 13-3-57. Mississippi courts interpret this statute as authorizing, "three activities" which will permit Mississippi courts to exercise personal jurisdiction over a nonresident defendant: "(1) if that person has entered into a contract to be performed in Mississippi; (2) has committed a tort in Mississippi; or, (3) is conducting business in Mississippi." Dunn v. Yager, 58 So. 3d 1171, 1184 (Miss. 2011) (quoting Yatham v. Young, 912 So. 2d 467, 469-70 (Miss. 2005)). 7. Contrary to the self-serving and materially false affidavit submitted by Takeda USA, the true facts show that Takeda USA conducted business in Mississippi through its sale representatives (including the Plaintiff). Takeda USA maintained at least three regional sales districts in Mississippi. Takeda USA’s contention that it had not subjected itself to personal jurisdiction through its employment of the Plaintiff and through its other sales activities in Mississippi is simply false and without merit. 8. As Takeda USA admitted in its own filings, if Takeda USA employed the Plaintiff, then Takeda USA has submitted itself to personal jurisdiction in Mississippi. The indisputable evidence shows precisely that. Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 8 of 12 9 The counter affidavits of counsel for the Plaintiff and her staff create genuine issues of fact regarding service of process 9. With regard to the issue of service of process, the Plaintiff has no additional evidence to provide the Court. Plaintiff previously argued that substantial questions of fact exist regarding whether counsel for the Plaintiff was notified that CT Corporation contends not to be the agent for service of process for the Defendant. Defendant has submitted an affidavit from CT Corporation representative stating that a letter was mailed to counsel for the Plaintiff stating that CT Corporation was not the registered agent for Defendant.2 However, no proof of mailing has been provided showing that the alleged letter was actually mailed and/or delivered.3 In fact, the copy of the letter attached to the affidavit, although dated March 17, 2017, was not printed until August 31, 2018. No other information, mail metering information, or copy of a stamped envelope was provided. 10. Plaintiff would assert that the credibility of the evidence presented by Takeda USA should be closely examined in light of Takeda USA’s apparent willingness to submit materially false affidavit regarding its substantial contacts with the State of Mississippi and its employment of the Plaintiff. Plaintiff has submitted affidavit evidence that shows that Plaintiff was never notified of CT 2 [18-5] Affidavit of Brian Hickman, CT Corporation Representative 3 [18-5] at pg. 5 Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 9 of 12 10 Corporation’s contention that it was not the registered agent for Takeda USA.4 Takeda USA appears to play fast and loose with its registration to conduct business in Mississippi. The evidence presented herein demonstrates that Takeda USA does in fact conduct business in Mississippi, whether Takeda USA is registered to do so or not. 11. CT Corporation’s failures should not be borne by the Plaintiff. If any such failures did occur, that liability lies with CT Corporation and does not justify setting aside the state court default judgment. CONCLUSION 12. Takeda USA was the employer of the Plaintiff during the time relevant to Plaintiff’s claims. The evidence submitted herein shows that Takeda USA is subject to personal jurisdiction in Mississippi because it employed Plaintiff and conducted substantial business in Mississippi. The requirements of the Mississippi Long Arm Statute (Miss. Code Ann. §§ 13-3-57) have been met. Takeda USA’s attempt to avoid service of process through misleading information should not be found meritorious. For these reasons, and as set forth herein, Plaintiff requests this Court deny Defendant’s [18] Motion. Respectfully submitted, this the 20th day of March 2019. JANA BRUNE, Plaintiff By: s/ David N. Harris, Jr. DAVID N. HARRIS, JR.(MSB# 100790) 4 See Affidavit of Attorney Ashley Hendren attached to Plaintiff’s Motion as “Exhibit 2”; Affidavit of Attorney Chris Graves attached to Plaintiff’s Motion as “Exhibit 3”; and Affidavit of Rhonda Addison, paralegal for Hendren Law Firm, attached to Plaintiff’s Motion as “Exhibit 4”. Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 10 of 12 11 Attorneys for Plaintiff David N. Harris, Jr. DAVID N. HARRIS, JR. LAW FIRM, P.L.L.C. P.O. Box 336 Gulfport, MS 39502-0336 Phone: (228) 236-7616 Email: david@davidharrislawfirm.com Ashley H. Hendren THE HENDREN LAW FIRM 1117 Washington Avenue Ocean Springs, MS 39564 Phone: (228) 872-8878 Email: ashley@ahendrenlaw.com Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 11 of 12 12 CERTIFICATE OF SERVICE I hereby certify that on this day, I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the ECF system which sent notification of such filing to all counsel of record. This the 20th day of March 2019. By: s/ David N. Harris, Jr. DAVID N. HARRIS, JR. (MSB #100790) Case 1:18-cv-00298-LG-RHW Document 25 Filed 03/20/19 Page 12 of 12