Allen et al v. Indivior Inc. et al

MOTION to Dismiss for Lack of Personal Jurisdiction , Failure to State a Claim, and Improper Venue

N.D.N.Y.April 10, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK Laurence Allen & Michelle Allen, ) Co-Administrators Of The Estate ) of John Bradley Allen, ) ) Plaintiffs, ) Case No. 1:16-CV-1538 (DNH/CFH) ) v. ) Judge David N. Hurd ) Indivior, Inc., ) Magistrate Judge Christian F. Hummel Reckitt Benckiser Healthcare (UK) Ltd., ) Indivior PLC, and ) MonoSol RX, LLC, ) ) Defendants. ) DEFENDANT INDIVIOR PLC’S NOTICE OF MOTION TO DISMISS PLEASE TAKE NOTICE, that upon the attached affidavit of David B. Alden, sworn to on April 10, 2017, and the accompanying memorandum of law, defendant Indivior PLC will move this Court at the Alexander Pirnie Federal Building and U.S. Courthouse, 10 Broad Street, Utica, NY 13501, on the 26th day of May 2017 at 10:00 A.M. for an order: (1) dismissing the complaint with prejudice as against Indivior PLC pursuant to Fed. R. Civ. P. 12(b)(2) because plaintiffs have failed to allege a prima facie basis for this Court to exercise personal jurisdiction over Indivior PLC; (2) dismissing the complaint with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) because (a) plaintiffs’ product liability claims are time-barred, (b) any claims under the Connecticut unfair trade practices statutes are barred by the Connecticut Product Liability Act, and (c) with respect to Indivior PLC, plaintiffs have not alleged a substantive basis for relief in that Indivior PLC was created after all of the relevant events underlying this action; Case 1:16-cv-01538-DNH-CFH Document 29 Filed 04/10/17 Page 1 of 3 2 (3) in the alternative, (a) dismissing the complaint without prejudice pursuant to Fed. R. Civ. P. 12(b)(3) because venue does not lie in this District or (b) transferring this action to the District of Connecticut under 28 U.S.C. § 1406(a); and (4) awarding Indivior PLC such other and further relief as this Court shall deem just and proper. PLEASE TAKE FURTHER NOTICE, that, upon agreement of the parties and pursuant to Local Rule 7.1(b) of the Local Rules of Practice for the United States District Court for the Northern District of New York, opposition papers, if any, must be filed and served on or before April 28, 2017, and Indivior PLC’s reply papers, if any, must be filed and served on or before May 15, 2017. Dated: April 10, 2017 Respectfully submitted, s/ David B. Alden_________________ David B. Alden (admitted pro hac vice) Stephen J. Miller (admitted pro hac vice) JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio 44114 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 dbalden@jonesday.com sjmiller@jonesday.com Chris J. Lopata JONES DAY 250 Vesey Street New York, New York 10281 Telephone: (212) 326-3939 Facsimile: (212) 755-7306 cjlopata@jonesday.com Attorneys for Defendant Indivior Inc. Case 1:16-cv-01538-DNH-CFH Document 29 Filed 04/10/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on April 10, 2017, a copy of the foregoing, and all documents and attachments thereto, was served upon counsel of record who have entered an appearance via notification through the Court’s electronic filing system. /s/ David B. Alden An Attorney for Defendant Indivior Inc. Case 1:16-cv-01538-DNH-CFH Document 29 Filed 04/10/17 Page 3 of 3 Case 1:16-cv-01538-DNH-CFH Document 29-1 Filed 04/10/17 Page 1 of 2 Case 1:16-cv-01538-DNH-CFH Document 29-1 Filed 04/10/17 Page 2 of 2 Exhibit 1 Case 1:16-cv-01538-DNH-CFH Document 29-2 Filed 04/10/17 Page 1 of 2 Case 1:16-cv-01538-DNH-CFH Document 29-2 Filed 04/10/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK Laurence Allen & Michelle Allen, ) Co-Administrators Of The Estate ) of John Bradley Allen, ) ) Plaintiffs, ) Case No. 1:16-CV-1538 (DNH/CFH) ) v. ) Judge David N. Hurd ) Indivior, Inc., ) Magistrate Judge Christian F. Hummel Reckitt Benckiser Healthcare (UK) Ltd., ) Indivior PLC, and ) MonoSol RX, LLC, ) ) Defendants. ) MEMORANDUM IN SUPPORT OF INDIVIOR PLC’S MOTION TO DISMISS BASED ON FED. R. CIV. P. 12(b)(2), 12(b)(6), AND 12(b)(3) Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 1 of 18 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION ...................................................................................................................1 II. PLAINTIFFS’ COMPLAINT ...................................................................................................2 III. ARGUMENT ............................................................................................................................3 A. The Court Should Dismiss This Action As to Indivior PLC Under Fed. R. Civ. P. 12(b)(2) For Lack of Personal Jurisdiction .........................................................3 1. Plaintiffs Fail To Allege Facts Showing A Basis For Exercising General Jurisdiction Over Indivior PLC In New York ............................................4 2. Plaintiffs Fail to Allege Facts Showing A Basis For Exercising Specific Jurisdiction Over Indivior PLC In New York ...........................................5 B. The Complaint Fails to State A Claim Under Rule 12(b)(6) Because Plaintiffs’ Claims Are Time-Barred And the Connecticut Product Liability Act Excludes Claims Under Unfair Trade Practices Statutes .........................................8 C. The Court Should Dismiss This Action Under Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a) Because Venue Is Improper Or, In The Alternative, Transfer To The District of Connecticut Under 28 U.S.C. § 1406(a) .........................................11 IV. CONCLUSION.......................................................................................................................11 Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 2 of 18 ii TABLE OF AUTHORITIES Page CASES Astor Holdings, Inc. v. Roski, 325 F. Supp. 2d 251 (S.D.N.Y. 2003) ......................................................................................10 Bracken v. MH Pillars, Inc., No. 15-CV-7032, 2016 U.S. Dist. LEXIS 180133 (S.D.N.Y. Dec. 29, 2016) ..........................................................................................................6 Call Center Technologies, Inc. v. Grand Adventures Tour, 635 F.3d 48 (2d Cir. 2011) (per curiam) .................................................................................10 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .................................................................................................................4 Domain Vault LLC v. McNair, No. 3:14-CV-1146, 2015 U.S. Dist. LEXIS 130449 (N.D. Tex. Sept. 28, 2015) .......................................................................................................10 Goodyear Dunlop Tires Operations, S.A., v. Brown, 564 U.S. 915 (2011) ...............................................................................................................4, 6 Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55 (2d Cir. 1985).........................................................................................................4 Hood v. Ascent Medical Corp., No. 13-CV-628, 2016 U.S. Dist. LEXIS 80080 (S.D.N.Y. June 20, 2016) ...........................................................................................................6 Hwang v. Grace Road Church, No. 14-CV-7187, 2016 U.S. Dist. LEXIS 32824 (E.D.N.Y. Mar. 14, 2016) ..........................................................................................................9 Licci v. Lebanese Canadian Bank, 673 F.3d 50 (2d Cir. 2012).........................................................................................................3 Minholz v. Lockheed Martin Corp., No. 1:16-CV-154, 2016 U.S. Dist. LEXIS 180208 (N.D.N.Y. Dec. 30, 2016) ..................................................................................................3, 5, 7 Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 3 of 18 iii New York v. National Service Industries, Inc., 460 F.3d 201 (2d Cir. 2006).....................................................................................................10 Pioli v Town of Kirkwood, 117 A.D.2d 954, 499 N.Y.S.2d 266 (3d Dep’t 1986) ..............................................................10 Quanaim v. Frasco Restaurant & Catering, 17 S.W.3d 30 (Tex. App. 2000) ...............................................................................................10 Reiner v. Washington Plate Glass, 711 F.2d 414 (D.C. Cir. 1983) ...................................................................................................9 Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221 (2d Cir.), cert. denied, 134 S. Ct. 2888 (2014) ....................................................4 Staehr v. Mack, No. 07-CV-10368, 2011 U.S. Dist. LEXIS 36014 (S.D.N.Y. Mar. 31, 2011) ..........................................................................................................9 Walden v. Fiore, 134 S. Ct. 1115 (2014) ...............................................................................................................7 Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2d Cir. 2016).......................................................................................................4 FEDERAL STATUTES 28 U.S.C. § 1406(a) .............................................................................................................1, 11, 12 STATE STATUTES Conn. Gen. Stat. § 52-577a(a) .........................................................................................................1 Connecticut Product Liability Act. ....................................................................................1, 2, 8, 12 Connecticut Unfair Trade Practices Act. .........................................................................................2 N.Y. C.P.L.R. § 301 ...........................................................................................................4, 4 n.1, 5 N.Y. C.P.L.R. § 302 .......................................................................................................5, 5 n.2, 6, 8 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 12(b)(1)..............................................................................................................1, 10 Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 4 of 18 iv Fed. R. Civ. P. 12(b)(2)..........................................................................................................1, 3, 11 Fed. R. Civ. P. 12(b)(3)........................................................................................................1, 11, 12 Fed. R. Civ. P. 12(b)(6)......................................................................................................1, 8, 9, 11 FEDERAL RULES OF EVIDENCE Fed. R. Evid. 201 ...................................................................................................................9, 9 n.5 Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 5 of 18 1 I. INTRODUCTION Defendant Indivior PLC is a British holding company formed in September 2014. Plaintiffs’ complaint should be dismissed with respect to Indivior PLC for three reasons. First, Indivior PLC is not subject to personal jurisdiction because plaintiffs’ complaint does not make a prima facie showing that, under New York’s long-arm statutes or consistent with Due Process, this Court may exercise personal jurisdiction over Indivior PLC. Accordingly, the Court should dismiss the complaint with prejudice as to Indivior PLC under Fed. R. Civ. P. 12(b)(2). Second, and as explained in codefendant Indivior Inc.’s motion to dismiss based on Fed. R. Civ. P. 12(b)(6), (1) plaintiffs’ product liability claims are time-barred under the governing Connecticut three-year statute of limitations, Conn. Gen. Stat. § 52-577a(a), because plaintiffs commenced this action more than three years after their product liability claims accrued and (2) any claims plaintiffs are pursuing under Connecticut unfair trade practices statutes are barred by the Connecticut Product Liability Act. The Court also should dismiss the complaint with prejudice with respect to Indivior PLC because no substantive grounds for pursuing claims against Indivior PLC are alleged in the complaint, nor could there be because, among other things, Indivior PLC, which was formed on September 26, 2014, did not exist when the substantive events alleged in plaintiffs’ complaint occurred. Finally, and as explained in codefendant Indivior Inc.’s motion dismiss based on Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a), venue does not lie in this District because none of the defendants resides here and no events giving rise to plaintiffs’ claims are alleged to have occurred in this District. Accordingly, and in the alternative, the Court should dismiss this action without prejudice for lack of venue or transfer the action to the District of Connecticut under 28 U.S.C. § 1406(a). Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 6 of 18 2 II. PLAINTIFFS’ COMPLAINT Plaintiffs’ complaint alleges that their son, John Bradley Allen, was injured in a car accident in 2010 and then became addicted to hydrocodone, an opioid-based medication. (Complaint at ¶¶ 12-13). To treat his hydrocodone addiction, his physicians prescribed codefendant Indivior Inc.’s prescription drug Suboxone, which is indicated for the treatment of opioid dependence. (Id. at ¶ 14). “By late 2013,” he purportedly had become “completely addicted” to Suboxone and, in December 2013, he “attempted to end his [S]uboxone usage and enrolled in an intensive in-patient program to help him through the withdrawals.” (Id. at ¶¶ 17- 18). After he completed an in-patient addiction treatment program, John Bradley Allen was discharged to his family in Connecticut. (Id. at ¶¶ 19-20). “On or about January 31, 2014” John Bradley Allen took a fatal overdose of heroin in his parents’ Connecticut home. (Id. at ¶ 21). In this diversity action, Plaintiffs seek to recover $100 million in compensatory damages for John Bradley Allen’s addiction to Suboxone from, among others, Indivior PLC under the Connecticut Product Liability Act and the Connecticut Unfair Trade Practices Act. (Id. at ¶¶ 4, 17-21). The sole allegation specifically directed to Indivior PLC states as follows: Defendant Indivior PLC, was formerly part of Reckitt Benckiser Group plc, and is a British corporation incorporated under the laws of England and Wales, with its registered office located at 103-105 Bath Road, SLI 3UH. This defendant is engaged in the development, manufacture, and sale of pharmaceuticals, including Suboxone, and health care products and services throughout the United States, and is in whole or in part responsible for some or all of the conduct alleged in the Complaint and attributed to [Indivior Inc.]. Indivior PLC is the successor in interest to Reckitt Benckiser Group pic [sic - plc]. (Id. at ¶ 9). In addition, plaintiffs allege generically that “[e]ach defendant transacts business or committed an illegal or tortious act in this district, or has an agent that can be found in this Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 7 of 18 3 district,” as well as that unspecified “events and omissions giving rise to Plaintiff’s claims occurred within this district.” (Id. at ¶ 6). III. ARGUMENT A. The Court Should Dismiss This Action As To Indivior PLC Under Fed. R. Civ. P. 12(b)(2) For Lack Of Personal Jurisdiction. “In order to survive a motion to dismiss for lack of personal jurisdiction, [the] plaintiff[s] must make a prima facie showing that jurisdiction exists.” Licci v. Lebanese Canadian Bank, 673 F.3d 50, 59 (2d Cir. 2012) (internal quotations and citation omitted). “To make this prima facie showing, a plaintiff must demonstrate a statutory basis for personal jurisdiction over the defendant, and that the Court’s exercise of jurisdiction over the defendant is in accordance with due process principles.” Minholz v. Lockheed Martin Corp., No. 1:16-CV-154, 2016 U.S. Dist. LEXIS 180208, *6 (N.D.N.Y. Dec. 30, 2016) (citation omitted). “This prima facie showing ‘must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant.’” Licci, 673 F.3d at 59 (citation omitted). “In considering whether the plaintiffs have met this burden, ‘[courts] will not draw “argumentative inferences” in the plaintiff's favor,’ nor are [they] required ‘to accept as true a legal conclusion couched as a factual allegation.’” Id. (citations omitted). As detailed below, plaintiffs’ complaint includes only conclusory allegations and legal conclusions that do not establish a prima facie basis for exercising personal jurisdiction over Indivior PLC, a British corporation incorporated under the laws of England and Wales with its registered office located at 103-105 Bath Road, Slough, Berkshire. (See Complaint at ¶ 9). Because plaintiffs have failed to allege facts sufficient to make a prima facie showing that this Court may exercise either general or specific jurisdiction over Indivior PLC, the Court should dismissed the complaint as to Indivior PLC based on Fed. R. Civ. P. 12(b)(2). Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 8 of 18 4 1. Plaintiffs Fail To Allege Facts Showing A Basis For Exercising General Jurisdiction Over Indivior PLC In New York New York’s long-arm statute addressing general jurisdiction, N.Y. C.P.L.R. § 301 (“CPLR § 301”),1 “confers jurisdiction where a company ‘has engaged in such a continuous and systematic course of “doing business” [in New York] that a finding of its “presence” [in New York] is warranted.’” Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir.) (quoting Landoil Res. Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28, 33, 565 N.E.2d 488, 490 (1990)), cert. denied, 134 S. Ct. 2888 (2014). This test “focuses upon factors including: the existence of an office in New York; the solicitation of business in the state; the presence of bank accounts and other property in the state; and the presence of employees of the foreign defendant in the state.” Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985) (internal citations omitted). Under the Due Process standard for general jurisdiction, courts may exercise general jurisdiction over a corporation only when it has “affiliations with the State [that] are so continuous and systematic as to render them essentially at home in the forum State.” Goodyear Dunlop Tires Ops., S.A., v. Brown, 564 U.S. 915, 919 (2011) (emphasis added); accord Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014). “Daimler analogized its “at-home test” to that of an individual’s domicile. For a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home. With respect to a corporation, the place of incorporation and principal place of business are paradigm bases for general jurisdiction.” Waldman v. Palestine Liberation Org., 835 F.3d 317, 332 (2d Cir. 2016) (citing Daimler, 134 S. Ct. at 760). Indeed, 1 CPLR § 301 provides: Jurisdiction over persons, property or status. A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore. Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 9 of 18 5 “Daimler all but eliminated” the possibility that a corporation could be “at home and subject to general jurisdiction” in any location other than its place of incorporation or principal place of business. Minholz, 2016 U.S. Dist. LEXIS 180208, *11 (internal quotations and citation omitted). Here, plaintiffs make the conclusory claim that each defendant engages in activities “throughout the United States,” as well as sweeping allegation that “[e]ach Defendant transacts business or committed an illegal or tortious act in this district, or has an agent that can be found in this district.” (Complaint at ¶¶ 6-10) (emphasis added). But plaintiffs do not allege any facts showing that Indivior PLC has any presence in New York, much less a “continuous or systematic” one, that would satisfy CPLR § 301. Moreover, because they allege that Indivior PLC is incorporated and has its principal place of business outside of New York (Complaint at ¶ 9), plaintiffs’ allegations establish that Indivior PLC is not “at home” in New York such that Due Process would support exercising general jurisdiction over it in New York. Accordingly, plaintiffs have not alleged facts sufficient to support exercising general jurisdiction over Indivior PLC. 2. Plaintiffs Fail To Allege Facts Showing A Basis For Exercising Specific Jurisdiction Over Indivior PLC In New York Under subsections (a)(1) to (a)(4) of the New York long-arm statute relating to specific jurisdiction, N.Y. C.P.L.R. § 302 (“CPLR § 302”),2 a court may exercise specific jurisdiction 2 CPLR § 302 provides in relevant part that: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 10 of 18 6 over a foreign corporation “[a]s to a cause of action arising from” the corporation (1) “transact[ing] any business within the state or contract[ing] anywhere to supply goods or services in the state;” (2) “commit[ting] a tortious act within the state;” (3) “regularly do[ing] . . . business . . . in the state” and “commit[ting] a tortious act without the state causing injury to person or property within the state;” or (4) “own[ing], us[ing] or possess[ing] any real property situated within the state.” CPLR § 302(a)(1)-(4). An “allegation[] that [a defendant] ‘transact[s] business’ in New York merely restat[ing] the relevant jurisdictional test” is “too conclusory to establish a prima facie showing of jurisdiction” under CPLR § 302(a)(1). Bracken v. MH Pillars, Inc., No. 15-CV-7032, 2016 U.S. Dist. LEXIS 180133, *10 n.5 (S.D.N.Y. Dec. 29, 2016) (citation omitted). Likewise, “[c]onclusory allegations that torts were committed in New York . . . without more, cannot be the basis for specific personal jurisdiction under” CPLR § 302(a)(2) or (a)(3). Hood v. Ascent Med. Corp., No. 13-CV-628, 2016 U.S. Dist. LEXIS 80080, *8 (S.D.N.Y. June 20, 2016). For there to be specific jurisdiction for purposes of Due Process, “[a] corporation’s ‘continuous activity of some sorts within a state’ … ‘is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.’” Goodyear, 564 U.S. 927-28 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state. Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 11 of 18 7 (citation omitted). Thus, “[t]he plaintiff must demonstrate that [its] claim arises out of or relates to [defendant’s] contacts with [the forum state] and that the defendant purposefully availed [itself] of the privilege of doing business in the forum state such that [it] could foresee being haled into court there.” Minholz, 2016 U.S. Dist. LEXIS 180208, at *14-15 (emphasis added) (internal quotation marks and citation omitted). A defendant can only be “haled into court in a forum State based on [its] own affiliation with the State, not based on the random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated with the State.” Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014) (internal quotation marks omitted). Here, plaintiffs’ allegations relating to supposed conduct tying this action to New York are entirely conclusory and, indeed, are the same-word-for-word-with respect to all four defendants. (Complaint at ¶¶ 6-10). Thus, plaintiffs allege in conclusory fashion that Indivior PLC engaged in conduct “throughout the United States” and “is in whole or part responsible for some or all of the conduct alleged in th[e] Complaint,” as well as that “[e]ach defendant transacts business or committed an illegal or tortious act in this district, or has an agent that can be found in this district.” (Id. at ¶¶ 6, 9) (emphasis supplied). As to Indivior PLC, there are no specific factual allegations that it transacts business, committed a tort, has a physical presence, or owns property in New York. Nor do plaintiffs allege that their claims arise out of Indivior PLC’s (or any other defendant’s) conduct in New York. Significantly, plaintiffs do not allege that the Suboxone John Bradley Allen took was designed or manufactured in New York or that he (1) was prescribed Suboxone in New York, (2) purchased Suboxone in New York, (3) ingested Suboxone in New York, (4) was treated in connection with his Suboxone use in New York, or (5) was injured as a result of taking Suboxone in New York. Indeed, virtually every time the complaint references a specific location Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 12 of 18 8 where an event relating to John Bradley Allen occurred, the location is in Connecticut.3 (See Complaint at ¶¶ 1, 5, 20-21). In short, plaintiffs have failed to allege facts that establish a prima facie case that this Court may exercise specific jurisdiction over Indivior PLC either under CPLR § 302 or consistent with Due Process. B. The Complaint Fails To State A Claim Under Rule 12(b)(6) Because Plaintiffs’ Claims Are Time-Barred And The Connecticut Product Liability Act Excludes Claims Under Unfair Trade Practices Statutes. As detailed in codefendant Indivior Inc.’s motion to dismiss, plaintiffs’ product liability claims are time-barred under the governing three-year Connecticut statute of limitations because this action was commenced more than three years after plaintiffs’ claims accrued. (See Indivior Inc. Mem. Supp. Motion to Dismiss at 6-13). And any claims plaintiffs are pursuing under Connecticut unfair trade practices statutes are barred by the Connecticut Product Liability Act. (Id. at 13-14). These grounds for dismissal apply to plaintiffs’ claims against Indivior PLC in the same manner they do with respect to plaintiffs’ claims against Indivior Inc. Accordingly, Indivior PLC incorporates by reference codefendant Indivior Inc.’s motion to dismiss and supporting memorandum and seeks dismissal under Fed. R. Civ. P. 12(b)(6) on those grounds. Separately, plaintiffs’ claims against Indivior PLC fail for the additional reason that, as reflected in its certificate of incorporation attached as Exhibit 1, Indivior PLC was formed on September 26, 2014. (Indivior PLC Certificate of Incorporation (Exh. 1) (available on official site at https://beta.companieshouse.gov.uk/company/09237894/filing-history) (reflecting that Indivior PLC was formed on September 26, 2014)). That was over seven months after the last of the events that are the focus of plaintiffs’ complaint. (See Complaint at ¶¶ 14-21 (alleging series 3 The sole factual reference in the complaint that appears to relate to New York is that John Bradley Allen was an intern at his father’s private equity advisement firm, NYPPEX, which appears to be located in Westchester County, New York. (Complaint at ¶ 20). That does nothing to tie anything any of the defendants did or failed to do to New York. Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 13 of 18 9 of events leading up to John Bradley Allen’s death on January 31, 2014, or February 1, 2014)).4 Pursuant to Fed. R. Evid. 201,5 courts regularly take judicial notice of facts reflected in a corporation’s certificate of incorporation, including the date of incorporation, because they are readily determined from a source that is not subject to reasonable dispute. Reiner v. Washington Plate Glass, 711 F.2d 414, 416 (D.C. Cir. 1983) (taking judicial notice of a corporation’s date of incorporation sua sponte); Hwang v. Grace Rd. Church, No. 14-CV-7187, 2016 U.S. Dist. LEXIS 32824, *8 (E.D.N.Y. Mar. 14, 2016) (taking judicial notice of certificate of incorporation in connection with Fed. R. Civ. P. 12(b)(6) motion to dismiss); Staehr v. Mack, No. 07-CV- 10368, 2011 U.S. Dist. LEXIS 36014, *18 n.5 (S.D.N.Y. Mar. 31, 2011) (“Courts may take 4 Consistent with the allegations in paragraph 7 of plaintiffs’ complaint, Indivior PLC acquired the stock of defendant Indivior Inc., which formerly was known as Reckitt Benckiser Pharmaceuticals, Inc., in a demerger in December 2014. Before the demerger, the stock of Indivior Inc. (then known as Reckitt Benckiser Pharmaceuticals, Inc.) had been owned by Reckitt Benckiser Group plc, which is not a party to this action. 5 Fed. R. Evid. 201 provides in relevant part: Judicial Notice of Adjudicative Facts (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (c) Taking Notice. The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. (d) Timing. The court may take judicial notice at any stage of the proceeding. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 14 of 18 10 judicial notice of a certificate of incorporation on a motion to dismiss.”) (citation omitted); see also Domain Vault LLC v. McNair, No. 3:14-CV-1146, 2015 U.S. Dist. LEXIS 130449, *7 (N.D. Tex. Sept. 28, 2015) (taking judicial notice of corporation’s date of incorporation as reflected on Virginia corporation commission’s website in connection with Fed. R. Civ. P. 12(b)(1) motion to dismiss). Absent a basis for successor liability, a newly formed corporation cannot be liable for conduct predating its formation. Astor Holdings, Inc. v. Roski, 325 F. Supp. 2d 251, 265 (S.D.N.Y. 2003) (defendant “cannot be liable for tortious conduct that took place prior to its incorporation”); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 42 (Tex. App. 2000) (“a corporation which has no legal existence at the time of an incident cannot be liable for that incident”); Pioli v Town of Kirkwood, 117 A.D.2d 954, 955, 499 N.Y.S.2d 266, 267 (3d Dep’t 1986) (“inasmuch as [the defendant] did not come into existence until almost two years subsequent to the completion of the contract, the action against it was properly dismissed”). And corporations are responsible as successors to the liabilities of others only under special circumstances such as a merger, an assumption of liability, or an asset purchase that resulted in a continuation of another corporation’s business or was a fraudulent conveyance. See New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir. 2006) (Sotomayor, J.) (outlining the circumstances where an asset purchaser may have successor liability under New York law); see also Call Ctr. Techs., Inc. v. Grand Adventures Tour, 635 F.3d 48, 52 (2d Cir. 2011) (per curiam) (same under Connecticut law). Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 15 of 18 11 Here, plaintiffs allege no circumstances that would make Indivior PLC responsible for events before its formation or that would give rise to a basis for successor liability.6 Accordingly, plaintiffs’ complaint should be dismissed as to Indivior PLC under Fed. R. Civ. P. 12(b)(6) because Indivior PLC did not exist during the relevant time period. C. The Court Should Dismiss This Action Under Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a) Because Venue Is Improper Or, In The Alternative, Transfer To The District Of Connecticut Under 28 U.S.C. § 1406(a). As detailed in codefendant Indivior Inc.’s motion to dismiss, venue does not lie in this District and, for that reason, the Court should dismiss this action without prejudice under Fed. R. Civ. P. 12(b)(3) or, in the alternative, transfer this action to the District of Connecticut under 28 U.S.C. § 1406(a). (See Indivior Inc. Mem. Supp. Motion to Dismiss at 14-18). The impropriety of venue in this District is not defendant-specific and applies to all defendants to the same extent and in the same manner as it does to Indivior Inc. Accordingly, Indivior PLC incorporates by reference codefendant Indivior Inc.’s motion to dismiss and supporting memorandum and, for the reasons explained in Indivior Inc.’s moving papers, seeks dismissal without prejudice under Fed. R. Civ. P. 12(b)(3) or, in the alternative, transfer under 28 U.S.C. § 1406(a). IV. CONCLUSION For the foregoing reasons, the Court should dismiss plaintiffs’ complaint with prejudice (1) as to Indivior PLC under Fed. R. Civ. P. 12(b)(2) because plaintiffs have failed to allege a prima facie basis for exercising personal jurisdiction over Indivior PLC and (2) under Fed. R. 6 Plaintiffs allege that Indivior PLC formerly was known as Reckitt Benckiser Group plc, as well as that Indivior PLC formerly was “part of Reckitt Benckiser Group plc” and is a “successor in interest to Reckitt Benckiser Group plc.” (Complaint caption, initial unnumbered paragraph, ¶ 9). While these allegations are inaccurate and, in particular, Indivior PLC was not formerly known as and is not a successor in interest to Reckitt Benckiser Group plc, they are of no consequence here because plaintiffs allege no claims against Reckitt Benckiser Group plc, which is not a party to this action. Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 16 of 18 12 Civ. P. 12(b)(6) because (a) plaintiffs’ product liability claims are time-barred, (b) any claims they may be asserting under Connecticut unfair trade practices statutes are barred by the Connecticut Product Liability Act, and (c) there is no basis for asserting claims with respect to Indivior PLC because it was created after all the events that are at issue in this action. Alternatively, plaintiffs’ complaint should be dismissed without prejudice under Fed. R. Civ. P. 12(b)(3) because venue does not lie in this District or, in the alternative, the Court should transfer this action to the District of Connecticut under 28 U.S.C. § 1406(a). Dated: April 10, 2017 Respectfully submitted, s/ David B. Alden _________________________ David B. Alden (admitted pro hac vice) Stephen J. Miller (admitted pro hac vice) JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio 44114 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 dbalden@jonesday.com sjmiller@jonesday.com Chris J. Lopata JONES DAY 250 Vesey Street New York, New York 10281 Telephone: (212) 326-3939 Facsimile: (212) 755-7306 cjlopata@jonesday.com Attorneys for Defendant Indivior PLC Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 17 of 18 13 CERTIFICATE OF SERVICE I hereby certify that on April 10, 2017, a copy of the foregoing was filed electronically and was served upon all counsel of record via notification through the Court’s electronic filing system. s/ David B. Alden An Attorney for Defendant Indivior Inc. Case 1:16-cv-01538-DNH-CFH Document 29-3 Filed 04/10/17 Page 18 of 18