Bahmler et al v. Johnson & Johnson et al

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.March 9, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION IN RE: JOHNSON & JOHNSON TALCUM PRODUCTS MARKETING, SALES PRACTICES & PRODUCTS LIABILITY LITIGATION JANICE BAHMLER, et al. Plaintiff, v. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES INC.; IMERYS TALC AMERICA, INC., JOHN DOES/JANE DOES 1-30 and UNKOWN BUSINESSES AND/OR CORPORATIONS A-Z Defendants. MDL No. 2738 NOTICE OF MOTION TO DISMISS PLAINTIFFS’ CLAIMS FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO STATE A CLAIM Civil Action No. 3:17-cv-00800 (FLW)(LHG) Motion Return Date: May 1, 2017 Document Filed Electronically TO: All Counsel of Record COUNSEL: PLEASE TAKE NOTICE that on May 1, 2017, or as soon thereafter as counsel may be heard, the undersigned, counsel for defendant Imerys Talc America, Inc. (“Defendant”), shall move before the District Court of New Jersey Trenton Division, for an Order Dismissing Plaintiffs’ Claims for lack of personal jurisdiction. PLEASE TAKE FURTHER NOTICE that Defendant will rely upon the attached Memorandum and Certification of Lorna A. Dotro, Esq. submitted herewith in support of this motion. PLEASE TAKE FURTHER NOTICE that pursuant to Rule 1:6-2, Defendant hereby requests oral argument in the event that this motion is opposed. COUGHLIN DUFFY LLP Attorneys for Defendant Imerys Talc America, Inc. s/ Lorna A. Dotro Lorna A. Dotro Dated: March 9, 2017 Case 3:17-cv-00800-FLW-LHG Document 46 Filed 03/09/17 Page 1 of 1 PageID: 1300 1 IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS MARKETING, SALES PRACTICES, & PRODUCTS LIABILITY LITIGATION This Document Relates to: JANICE BAHMLER, et al. Plaintiffs v. JOHNSON & JOHNSON, et al. Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MDL No. 2738 Civil A. No. 3:17-cv-00800- FLW-LHG DEFENDANT IMERYS TALC AMERICA, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ CLAIMS FOR LACK OF PERSONAL JURISDICTION Defendant Imerys Talc America, Inc. (“Imerys”) moves to dismiss all of the Plaintiffs’ claims because the Missouri Court cannot establish personal jurisdiction over Imerys. In support thereof, Imerys states as follows: INTRODUCTION Seventy-four Plaintiffs filed this action in Missouri State Court against Imerys and Johnson & Johnson, alleging that the talc in the Johnson and Johnson’s Baby Powder and Shower to Shower (the “Products”) allegedly used by Plaintiffs or their decedents caused them to develop ovarian cancer. (See Certification of Lorna A. Dotro (“Dotro Cert.”), Exhibit A, Plaintiffs’ Complaint (“Complaint”)). Plaintiffs assert that Imerys mined the talc that was ultimately used Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 1 of 13 PageID: 1301 2 in the Products manufactured and sold by Defendant Johnson & Johnson Consumer Companies, Inc., and therefore is liable to them. (Dotro Cert., Exhibit A, Complaint ¶ 82). None of the seventy-four Plaintiffs in this case can establish that Imerys is subject to personal jurisdiction in the State of Missouri. A court sitting in a Multi-District Litigation proceeding can only exercise personal jurisdiction over a party if the Transferor Court had personal jurisdiction over that same party. The Judicial Panel on Multidistrict Litigation has determined that, following a transfer under 28 U.S.C. § 1407(b), "the transferee judge has all the jurisdiction and powers over pretrial proceedings in the actions transferred to him [or her] that the transferor judge would have had in the absence of transfer." In re FMC Corp. Patent Litig., 422 F. Supp. 1163, 1165 (J.P.M.L. 1976); see also In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-cv-13760-FDS, 2016 WL 2349105, at *3 (D. Mass. May 4, 2016) (citing In re FMC Corp. Patent Litig., 422 F. Supp. 1163, 1165 (J.P.M.L. 1976)). Plaintiffs cannot establish specific personal jurisdiction against Imerys, nor can they establish general personal jurisdiction. In regards to general jurisdiction, in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the United States Supreme Court emphasized that general jurisdiction may be exercised over a corporation only in those states where the corporation can be considered to be “at home. 134 S.Ct. at 761. Imerys is a Delaware corporation with its principal place of business in California. (See the Affidavit of Patrick Downey, attached as Exhibit B (“Downey Affidavit”) to the Dotro Cert. at ¶ 5). The Complaint fails to allege any facts sufficient to render Imerys at home in Missouri in order to support the exercise of general jurisdiction. Nor can Plaintiffs establish specific jurisdiction for their claims against Imerys, as their claims do not arise from or relate to any Missouri in-state activities of Imerys. Plaintiffs do Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 2 of 13 PageID: 1302 3 not assert, nor could they, that Imerys mined, manufactured, sold, or distributed the talc that was used in the Products within, to, or from the State of Missouri or that the business transactions between Imerys and Johnson & Johnson Consumer Companies, Inc. occurred in Missouri. In fact, the business transactions between Imerys and Johnson & Johnson Consumer Companies, Inc. relating to Imerys’ sale of talc occurred outside of Missouri and therefore do not support the Plaintiffs’ claim that Imerys is subject to personal jurisdiction in Missouri. JURISDICTIONAL FACTS Imerys will not reiterate the lengthy Procedural History involved in this matter as same is set forth in complete detail in the Motion to Dismiss for Lack of Personal Jurisdiction filed by Co- defendant Johnson & Johnson. Imerys, however, will reiterate the specific facts that are relevant to its instant motion. Imerys moved to dismiss this matter on the basis of Personal Jurisdiction in the Eastern District of Missouri on November 18, 2016. While that motion was pending, this matter was transferred to these Multi-District Litigation proceedings. Imerys is not a resident of Missouri. (Downey Affidavit., ¶ 6) Imerys is a Delaware corporation with its principal place of business in California. Id. at ¶ 5. Imerys does not own, or possess property in the state. Id. at ¶ 7. It does not maintain an office or operations in Missouri. Id. at ¶ 8. Imerys does not have an address, telephone number, or bank account in Missouri. Id. at ¶¶ 9-11. None of its officers reside in Missouri or have offices in the state, and it does not maintain any records in the state. Id. ¶¶ at 12-13. While only four of the seventy-four plaintiffs reside in Missouri or allege their claims arose from their contacts with Missouri, (Dotro Cert., Exhibit A, Complaint at ¶¶ 2, 17, 39, 47), this is unimportant as to Imerys because Imerys is not subject to jurisdiction in Missouri even for the Missouri Plaintiffs’ claims. The talc that is used in the Products is not mined in Missouri. (Downey Affidavit at ¶ 14). Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 3 of 13 PageID: 1303 4 Indeed, Imerys neither sells talc in Missouri for use in the Products, nor ships or distributes talc in Missouri for use in the Products. Id. ¶¶ at 15-17. Imerys’ commercial transactions with Johnson & Johnson Consumer Companies, Inc., whose relevant manufacturing facilities are not located in Missouri, also took place outside Missouri. Id. Based on these undisputed facts, there is no proper basis for jurisdiction over Imerys for Plaintiffs’ claims against it in Missouri. For these reasons, and those discussed below, the Court should dismiss Plaintiffs’ claims against Imerys for lack of personal jurisdiction. ARGUMENT AND AUTHORITIES I. PLAINTIFFS’ CLAIMS AGAINST IMERYS SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION. The Court’s exercise of either general or specific jurisdiction over Plaintiffs’ claims against Imerys would violate Imerys’ due process rights. The Court, therefore, must dismiss Plaintiffs’ claims against Imerys for lack of personal jurisdiction. A. Plaintiffs Bear the Burden of Establishing a Prima Facie Basis for The Court’s Assertion of Personal Jurisdiction Over Imerys and cannot meet that burden on General Jurisdiction When personal jurisdiction is challenged, the plaintiffs must demonstrate that the defendant is subject to personal jurisdiction in the forum. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). It is well settled that this Court must apply the law of the Third Circuit in determining whether Imerys is subject to jurisdiction in Missouri. See In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 241 F.R.D. 435, 439 (S.D.N.Y. 2007) (“[T]he law of the transferee circuit controls pretrial issues such as whether the court has subject matter or personal jurisdiction over the action, or whether the cases should be remanded to state court because the cases were not properly removed.”). A federal court sitting in diversity undertakes a two-step inquiry in determining whether personal jurisdiction exists: the exercise of jurisdiction must (1) be appropriate under the state Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 4 of 13 PageID: 1304 5 long-arm statute and (2) not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 155 (3d Cir. 2010). Accordingly, Plaintiffs must prove that Imerys is amenable to suit under the Missouri long-arm statute and that the exercise of personal jurisdiction over Imerys would not violate due process. Id. Plaintiffs cannot meet this burden. A court can acquire personal jurisdiction over a non-resident defendant under two mechanisms: specific jurisdiction and general jurisdiction. Daimler, 134 S. Ct. at 754. Specific jurisdiction arises when the non-resident defendant “has purposefully directed [its] activities at residents of the forum [state] and the litigation results from injuries that arise out of or relate to those activities.” Burger King Corp. v. Rudezewicz, 471 U.S. 462, 472 (1985) (internal quotation and citations omitted). General jurisdiction arises when the defendant’s “‘continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities’.” Daimler, 134 S. Ct. at 754 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). B. The Exercise of General Jurisdiction Over Imerys Would Violate Due Process. In contrast to specific jurisdiction, general jurisdiction is “all-purpose jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). General jurisdiction arises when the defendant’s “continuous corporate operations within a state are so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Daimler, 134 S. Ct. at 754 (internal quotation and citation omitted). In order to establish the existence of general jurisdiction, a plaintiff must show that the defendant’s “affiliations with the [forum] State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Daimler, 134 S.Ct. at 761 (emphasis added) (quoting Goodyear, 131 S. Ct. at 2851). Only in an exceptional case will a corporation’s Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 5 of 13 PageID: 1305 6 operations in a forum other than its formal place of incorporation or principal place of business be so substantial and of such a nature as to render it “at home” in the forum state. Daimler, 134 S.Ct. at 761 n.19. Here, Plaintiffs fail to allege any facts that would indicate Imerys is “at home” in Missouri. Plaintiffs’ allegations - i.e., that Imerys is subject to jurisdiction in Missouri because it mined and sold the talc contained in the Products that ultimately reached consumers in Missouri, (Dotro Cert., Exhibit A, Complaint at ¶¶ 82-83) - are exactly the sort of insufficient bases that the Supreme Court criticized in Daimler. 134 S. Ct. at 760. Federal and state courts across the country now reject such arguments. See e.g., Sonera Holding B. V. v. Cukurova Holding A.S, 750 F.3d 221, 223 (2d Cir. 2014) (noting that the Daimler opinion “reaffirms that general jurisdiction extends beyond an entity’s state of incorporation and principal place of business only in the exceptional case where its contacts with another forum are so substantial as to render it at home in that state”) (emphasis added) (internal quotation and citation omitted); Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (emphasizing that “[a] corporation that operates in many places can scarcely be deemed at home in all of them” and dismissing claims for lack of personal jurisdiction); Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381, 386-87 (E.D.N.Y. 2015) (concluding that no general personal jurisdiction existed over out-of-state defendant who operated a manufacturing facility in the state because the contact was insufficient to establish it was “at home” since the defendant had hundreds of manufacturing plants nationwide); Freedman v. Suntrust Banks, Inc., 139 F. Supp. 3d 271, 280 (D.D.C. 2015) (discussing prior cases refusing to find general jurisdiction despite contract negotiations and meetings with the U.S. government, a website, tax filings, and contacts with non-government clients in the District and concluding that it could not find Defendants essentially Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 6 of 13 PageID: 1306 7 at home in the District of Columbia “[w]hen the Court views Defendants’ contacts with the District of Columbia in light of Defendants’ contacts with their seven other primary bases of operation”) (internal quotation and citations omitted); Eaves v. Pirelli Tire, LLC, No. 13-1271, 2014 WL 1883791, at *9 (D. Kan. May 12, 2014) (determining that “plaintiffs’ stream of commerce arguments are to no avail for general jurisdiction”); Lexion Med., LLC v. SurgiQuest, Inc., 8 F. Supp. 3d 1122, 1127-28 (D. Minn. 2014) (explaining that although defendant had “repeatedly transacted business” in State, a corporation’s “continuous activity of some sorts within a state” is not sufficient to support general jurisdiction) (internal quotation and citation omitted)); In re Plavix Related Cases, No. 2012L5688, 2014 WL 3928240, at *5-8 (Trial Order) (Ill. Cir. Ct. Aug. 11, 2014) (“Plaintiffs’ jurisdictional framework, taken to its logical conclusion, would produce exactly that forbidden result: national general jurisdiction in every state in which Defendants are doing business and generating sales revenue. Daimler makes clear that such an approach to general jurisdiction does not comport with due process.”). Notably, many Courts in the Third Circuit have also reached the same conclusion. In Nutt v. Best Western International, 2016 U.S. Dist. LEXIS 158794 (M.D. Pa. November 16, 2016) the Court noted: In this case, Plaintiffs fail to meet their burden of showing that BWI is "at home" in Pennsylvania and thus, subject to general personal jurisdiction. Plaintiffs do not allege that BWI is incorporated or has its principal place of business in Pennsylvania. To the contrary, Plaintiffs allege that BWI's corporate address is Phoenix, Arizona and for "diversity of jurisdiction purposes, ... is considered a resident of ... Arizona." (Citations Omitted) Moreover, despite the opportunity to respond to BWI's argument that this Court lacks general jurisdiction over it, Plaintiffs provide no counterargument or support, through affidavits or otherwise, that would detail the extent of BWI's operations in Pennsylvania. The mere allegations that BWI licenses its trade name and logo in Pennsylvania, maintains a reservation system which caters to citizens of Pennsylvania, and provides national advertising, without more, does not render BWI "at home" in Pennsylvania and subject it to general Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 7 of 13 PageID: 1307 8 jurisdiction here. Id. at 7; see also Farber v. Tennant Truck Lines, Inc., 84 F. Supp. 3d 421, 432 (E.D. Pa. 2015) (“[Goodyear and Daimler] make clear that even a company’s ‘engagement in a substantial, continuous, and systematic course of business’ is alone insufficient to render it at home in a forum.”) (citations omitted); Mann v. Bales, 2016 U.S. Dist. LEXIS 139684, (M.D.Pa. October 7, 2016). Just last week, the Missouri Supreme Court decided a case that dispenses with any argument that Missouri courts have jurisdiction over Imerys in this case. In State Ex Rel. Norfolk Southern Railroad Company v. The Honorable Colleen Dolan, No. SC95514, 2017 Mo. LEXIS 66 (Feb. 28, 2017) (attached as Exhibit D to the Dotro Cert.), the Court held that Norfolk, which “did substantial and continuous business” and millions of dollars in sales in Missouri, was not subject to general jurisdiction there for a lawsuit arising from a worker’s injuries outside of the state. Id. at *1-3, *6-12. The Court pointed to Daimler’s holding that a court normally may exercise general jurisdiction over a corporation in the state where it is incorporated or maintains its principal place of business, or in an “exceptional case[],” where its activities are “so substantial and of such a nature as to render the corporation at home in that state.” Id. at *6-7, quoting Daimler, 134 S. Ct. at 761 n.19. Additionally, the Missouri Supreme Court held that Norfolk’s registration to do business in Missouri was not consent to general jurisdiction there, contrary to the ruling of some Missouri lower courts. Id. at *19-22. Imerys has demonstrated that it is in no way “at home” in Missouri- Imerys is neither incorporated nor maintains its principal place of business (nor any place of business) in Missouri. (Dotro Cert., Exhibit B., Downey Affidavit at ¶ 5.) Imerys is a Delaware corporation with its principal place of business located in California. Id. Imerys is not a resident of Missouri. Id.¶ 6. It does not maintain an office or operations in Missouri or own or possess any real property Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 8 of 13 PageID: 1308 9 located in the state. Id. at ¶¶ 7-8. No Imerys officers resides in or has offices in Missouri, and Imerys does not maintain an address, telephone number, or bank account in Missouri. Id. at ¶¶ 9-12. Traditional notions of fair play and substantial justice would be offended by hauling Imerys into a court in a state where it is neither incorporated nor has its principal place of business, or any “at home” presence. Consequently, the Eastern District of Missouri Court may not constitutionally exercise general personal jurisdiction over Imerys in this matter, and Plaintiffs’ claims against Imerys must be dismissed for lack of personal jurisdiction. See Daimler, 134 S. Ct. at 751-54, 760-62. C. The Eastern District of Missouri Court Cannot Exercise Specific Jurisdiction Over Imerys. To assert specific jurisdiction over a non-resident defendant, a state must inquire into the relationship among the defendant, the forum, and the litigation. Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The focus must be on whether the in-state activities of the non-resident, corporate defendant “gave rise to the liabilities sued on.” Daimler, 134 S. Ct. at 761 (internal citation omitted). It is not enough that a defendant have some minimum contacts with the forum state by way of the plaintiff’s injury. Walden, 134 S. Ct. at 1125. (“[M]ere injury to a forum resident is not a sufficient connection to the forum. . . . The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.”). Rather, “the relationship must arise out of contacts that the defendant himself creates with the forum State, [for] [d]ue process limits on a state’s adjudicative authority principally protect the liberty of the nonresident defendant-not the convenience of plaintiffs or third parties.” Id. at 1122 (emphasis added) (internal quotations and citation omitted). No matter how significant the plaintiff’s contacts with the forum, it is the defendant’s contacts with the forum that must be considered. Id. “[T]he plaintiff cannot be the only link between the defendant and the forum [state].” Id.; see also World-Wide Volkswagen. Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 9 of 13 PageID: 1309 10 v. Woodson, 444 U.S. 286, 298 (1980) (“the mere ‘unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum State.’”) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The benchmark in determining specific jurisdiction is “whether the defendant purposefully established minimum contacts in the forum State,” Burger King, 471 U.S. at 474 (internal quotation and citation omitted), such that the defendant could “reasonably anticipate being hauled into court” for its forum-based activities, World-Wide Volkswagen, 444 U.S. at 297. Purposeful availment is necessary to ensure a non-resident is not haled into a jurisdiction as the result of attenuated contact. Burger King, 471 U.S. at 475. If a non-resident has not purposefully availed itself of the laws of the forum state, the non-resident is not subject to personal jurisdiction there. Plaintiffs cannot satisfy their burden of showing Imerys “purposefully availed” itself of the laws of Missouri and that the litigation is related to those specific activities. Imerys did not mine, import, manufacture, sell, distribute, or otherwise provide the talc that was used in the Products in, to, or from Missouri. (Dotro Cert., Exhibit B, Downey Affidavit at ¶¶ 14-17). Imerys’ sale of talc to Johnson & Johnson for use in its body powders occurred outside of Missouri; Imerys does not ship the talc used for the body powder at issue here into or out of Missouri. Id. at ¶¶ 14-17. The mere fact that Imerys placed raw talc into the stream of commerce outside of Missouri and that products manufactured by a third party using that raw material ultimately made their way to Missouri does not satisfy the requirement of meaningful contact with Missouri. The mere “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1987) (plurality opinion). Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 10 of 13 PageID: 1310 11 Just as it did with general jurisdiction, the Missouri Supreme Court in Norfolk Southern Railroad Company, dispensed with any notion that the Missouri courts had specific jurisdiction over Norfolk, despite its substantial activities there, since the cause of action arose not from Norfolk’s activities in Missouri, but from its activities in another state. Id. at 2, 10-15. Here, because Imerys has no activities at all in Missouri related to its sale of talc to Johnson & Johnson for use in body powder used by Plaintiffs, the Missouri court also lacks specific jurisdiction over Imerys for any of the plaintiffs’ claims arising from their use of Johnson & Johnson’s body powder. Because Plaintiffs have failed to demonstrate that Imerys directed any activity with respect to the Products in Missouri and that their injuries arise from any activity by Imerys within the State of Missouri, the Eastern District of Missouri Court cannot constitutionally exercise specific jurisdiction over Imerys in Missouri. To hold otherwise would violate Imerys’ due process rights under the Fourteenth Amendment. Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 11 of 13 PageID: 1311 12 CONCLUSION The Court should dismiss Plaintiffs’ claims against Imerys for lack of personal jurisdiction. Respectfully submitted, Dated: March 9, 2017 By /s /Lorna A. Dotro Lorna A. Dotro COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, New Jersey 07962 Telephone: (973) 267-0058 Facsimile: (973) 267-6442 E-mail: ldotro@coughlinduffy.com Nancy M. Erfle, Esq. Gordon & Rees Scully Mansukhani 121 SW Morrison Street, Ste. 1575 Portland, OR 97204 Telephone: 503-222-1075 Facsimile: 503-6 1 6-3 600 E-mail: nerfle@gordonrees.com Attorney for Defendant Imerys Talc America, Inc. Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 12 of 13 PageID: 1312 13 Certificate of Service I hereby certify that on 9th day of March, 2017, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system and via electronic mail to ALL COUNSEL OF RECORD. By /s /Lorna A. Dotro Lorna A. Dotro COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, New Jersey 07962 Telephone: (973) 267-0058 Facsimile: (973) 267-6442 E-mail: ldotro@coughlinduffy.com Attorney for Defendant Imerys Talc America, Inc. Case 3:17-cv-00800-FLW-LHG Document 46-1 Filed 03/09/17 Page 13 of 13 PageID: 1313 499714 v1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION IN RE: JOHNSON & JOHNSON TALCUM PRODUCTS MARKETING, SALES PRACTICES & PRODUCTS LIABILITY LITIGATION JANICE BAHMLER, et al. Plaintiff, v. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES INC.; IMERYS TALC AMERICA, INC., JOHN DOES/JANE DOES 1-30 and UNKOWN BUSINESSES AND/OR CORPORATIONS A-Z Defendants. MDL No. 2738 CERTIFICATION OF LORNA A. DOTRO, ESQ. IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ CLAIMS FOR LACK OF PERSONAL JURISDICTION Civil Action No. 3:17-cv-00800 (FLW) (LHG) Motion Return Date: May 1, 2017 Document Filed Electronically I, LORNA A. DOTRO, ESQ., of full age, hereby certifies as follows: 1. I am an attorney at law of the State of New Jersey and a Partner with the law firm of Coughlin Duffy LLP and have been requested to represent defendant Imerys Talc America, Inc. (“Defendant”) as local counsel in the above-referenced matter. I submit this Certification in support of our request that the Court dismiss the Plaintiffs’ Claims for lack of personal jurisdiction and failure to state a claim 2. Attached hereto as Exhibit A is a true and accurate copy of the Complaint filed by Plaintiffs in this matter 3. Attached hereto as Exhibit B is a true and accurate copy of the Affidavit of Patrick Downey. 4. Attached hereto as Exhibit C is a true and accurate copy of the unpublished decisions cited herein. 5. Attached hereto as Exhibit D is a true and accurate copy of the opinion in the Case 3:17-cv-00800-FLW-LHG Document 46-2 Filed 03/09/17 Page 1 of 2 PageID: 1314 499714 v1 matter of State ex rel. Norfolk S. Ry. v. Dolan, No. SC95514, 2017 Mo. LEXIS 66 (Feb. 28, 2017). I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. s/ Lorna A. Dotro Lorna A. Dotro Dated: March 9, 2017 Case 3:17-cv-00800-FLW-LHG Document 46-2 Filed 03/09/17 Page 2 of 2 PageID: 1315 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 1 of 90 PageID: 1316 E lectronically F iled - C ity of S t . Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 1622-CC10731 IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS STATE OF MISSOURI JANICE BAHMLER, AND MELISSA ACEVEDO, AND RALPH ALCALA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF SUSANA ALCALA, DECEASED, AND JOHN ANDERSEN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF CHARLOTTE ANDERSEN, DECEASED, AND VICTOR ARE VALO, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF RACHEL AREVALO, DECEASED, AND BETTY ARMSTRONG, AND BERTHA BARMES, AND DEL BAUM, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF MARY BAUM, DECEASED, AND DIANA BEDROSIAN, AND Cause Number Division: JURY TRIAL DEMANDED Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 2 of 90 PageID: 1317 DARLENE BERDUE; AND RISA BOND, AND DAWNCINA BURNELL, AND PEGGY CALD WELL, AND CAROLANN COLEMAN, AND KELLY COLLEVECHIO, AND DELLAJEAN COMBS, AND SARINA COOK, AND TOSHA DAVIS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF SHAWN DAVIS, DECEASED, AND CARMEN DE LA CORDAD DIAZ, AND DIANA DIVINE, AND E lectronically F iled - C ity of S t. L ouis - S eptem ber 29, 2 0 1 6 - 09:59 P M 2 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 3 of 90 PageID: 1318 JUDY DULANEY, AND MELVA DUNN, AND VERONDA JANE EVANS, AND CARLA EVANS, AND EVELYN FLEMING, AND CATHERINE FOGG, AND BRYAN FRIEND, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF DARLENE FRIEND, DECEASED, AND DAWN GILBERT, AND MARIA GOMEZ, AND EDWARD GREGORY, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF VICKI GREGORY, DECEASED, AND PATRICIA GUYON, 3 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 4 of 90 PageID: 1319 AND JADWIGA GUZY, AND TRACIANNE HARTNETT, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF LENORA JUANITA GREEN, DECEASED, AND DEBRA HAYNES, AND LEE HELLER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF SANDRA HELLER, DECEASED, AND LISA HILL, AND SABRINA JACKSON, AND GREGORY JOHNER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF DIANE JOHNER, DECEASED, AND WA KAMINSKY, AND KATHLEEN KELLY, AND MONICA KENT, E lectronically F ile d - C ity of S t. Lou is - S eptem ber 29, 2 0 1 6 - 09:59 P M 4 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 5 of 90 PageID: 1320 AND BETH KUCHARSKI, AND SHARON MARCHESE, AND THERESA MCDOWELL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF AUDREY BLOUNT, DECEASED, AND BRENDA MCGEE, AND MARY JO MILLS, AND TERESSA MILLS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ELLA FRAZIER, DECEASED, AND CHARLENE MONTGOMERY, • AND JULIA MOORE, AND NAOMI MORALES, AND LYNN NATHAN, AND 5 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 6 of 90 PageID: 1321 WENDY NYMAN, AND ABM OLLIVER, AND DONNA PETERSON, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF SYLVIA PAIGE, DECEASED, AND SHARON PIKE, AND CHARLES RIOS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF DEBRA RIOS, DECEASED, AND DAMON ROSE, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF BRENDA ROSE, DECEASED, AND MARY RUCKER, AND GEORGIANA RUSSO, AND RITA RYAN, AND DEANAH SHEARER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF LINDA BROOKS, DECEASED, E lectroni cally F ile d - C ity of S t. L ouis - S eptem ber 29, 2016 - 09:59 P M 6 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 7 of 90 PageID: 1322 AND DAYNA SHLIGER, AND SHIRLEY SIMS, AND CYNTHIA SMITH, AND CATHERINE SNEED, AND JAMES STODDARD, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF SHARON STODDARD, DECEASED, AND HAROLD STRASSBERG, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF DOROTHY STRASSBERG, DECEASED, AND FRANCES SWANSON, AND LYNN TRAVIS, AND DEBRA VANPAGE, AND SAMEICA WHEELER, AND E lectronically Filed - C ity of S i L ouis - S eptem ber 29, 2016 - 09:59 P M 7 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 8 of 90 PageID: 1323 DALE WILLIAMS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF BARBY WILLIAMS, DECEASED, AND DEBORAH WYATT, AND BONNIE YOUNG, INDIVIDUALLY AND ON BEHALF OF THE ESATE OF SANDRA YOUNG, DECEASED, Plaintiffs, VS. JOHNSON & JOHNSON, INC. Serve: M.H. Ullman One Johnson & Johnson Plaza New Brunswick, New Jersey 08933 and JOHNSON & JOHNSON CONSUMER, INC. f/k/a JOHNSON & JOHNSON CONSUMER COMPANIES, INC. Serve: Johnson & Johnson Registered Agent One Johnson & Johnson Plaza New Brunswick, New Jersey 08933 and IMERYS TALC AMERICA, INC. f/k/a LUZENAC AMERICA, INC. Serve: CT Corporation 120 South Clayton Avenue St. Louis, MO 63105 Defendants. E lectronically Filed - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M 8 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 9 of 90 PageID: 1324 E lectronically File d - C ity of S i L ouis - S eptem ber 29, 201 6 - 09:59 P M PETITION COME NOW Plaintiffs, by and through their undersigned counsel, and for their Petition against Defendants Johnson & Johnson; Johnson and Johnson Consumer Incorporated f/k/a Johnson & Johnson Consumer Companies, Inc.; Imerys Talc America, Inc., f/k/a Luzenac America, Inc., allege the following upon information and belief (including investigation made by and through Plaintiffs' counsel), except those allegations that pertain to Plaintiffs, which are based on personal knowledge: INTRODUCTION 1. Plaintiffs bring this cause of action against Defendants pursuant to Rule 52.05(a) of the Missouri Rules of Civil Procedure, as their claims arise out of the same series of transactions and occurrences, and their claims involve common questions of law and/or fact. All claims in this action are a direct and proximate result of Defendants' and/or their corporate predecessors' negligent, willful, and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling and/or sale of the products known as Johnson & Johnson Baby Powder and Shower to Shower (hereinafter "the PRODUCTS"). All Plaintiffs in this action seek recovery for damages as a result of developing ovarian cancer, which was directly and proximately caused by such wrongful conduct by Defendants, the unreasonably dangerous and defective nature of talcum powder, and the attendant effects of developing ovarian cancer. All of the claims involve common legal and medical issues. PARTIES 2. Plaintiff Janice Bahmler is a citizen of the City of St. Louis, State of Missouri. At all pertinent times, including from approximately 1970 to 2014, Plaintiff Janice Bahmler 9 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 10 of 90 PageID: 1325 purchased and applied talcum powder in the State of Missouri. In or around March 2006, Plaintiff Janice Bahmler was diagnosed with ovarian cancer, which developed in the State of Missouri. Plaintiff Janice Bahmler developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Janice Bahmler has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Janice Bahmler has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Janice Bahmler applied talcum powder in the State of Missouri. 3. Plaintiff Melissa Acevedo is a citizen of the City of Tucson, State of Arizona. At all pertinent times, including from approximately July 1987 to November 2014, Plaintiff Melissa Acevedo purchased and applied talcum powder in the State of Arizona. In or around November 2014, Plaintiff Melissa Acevedo was diagnosed with ovarian cancer, which developed in the State of Arizona. Plaintiff Melissa Acevedo developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Melissa Acevedo has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Melissa Acevedo has otherwise been 10 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 11 of 90 PageID: 1326 E lectronically Filed - C ity of S t. Louis - S ep tem b er 29, 2016 - 0 9 :59 P M damaged in a. personal and pecuniary nature. At all pertinent times, Plaintiff Melissa Acevedo applied talcum powder in the State of Arizona. 4. Plaintiff Ralph Alcala, an adult whose principal place of residence is in Rancho Cucamonga, State of CA, brings this action individually and in his capacity as representative of the Estate of Susana Alcala Plaintiff Ralph Alcala is pursuing this action due to the wrongfully caused premature death of his wife, Susana Alcala, on behalf the Estate of Susana Alcala, and all wrongful death beneficiaries/statutory distributees of Susana Alcala. The premature death of Susana Alcala was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to CA Code of Civil Procedure, Sections 377.30 and 377.60, Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 5. Plaintiff John Andersen, an adult whose principal place of residence is in the City of Lubbock, State of Texas, brings this action individually and in his capacity as representative of the Estate of Charlotte Andersen. Plaintiff John Andersen is pursuing this action due to the wrongfully caused premature death of his wife, Charlotte Andersen, on behalf the Estate of Charlotte Andersen and all wrongful death beneficiaries/statutory distributees of Charlotte Andersen. The premature death of Charlotte Andersen was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in 11 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 12 of 90 PageID: 1327 E lectronically F iled - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Tex. Civ. Prac. & Rem. Code §71.001, et seq., Plaintiff seeks damages for Charlotte Andersen's loss of future earnings, loss of Charlotte Andersen's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 6. Plaintiff Victor Arevalo, an adult whose principal place of residence is in the City of Pasadena, State of Texas, brings this action individually and in his capacity as representative of the Estate of Rachel Arevalo. Plaintiff Victor Arevalo is pursuing this action due to the wrongfully caused premature death of his wife, Rachel Arevalo, on behalf the Estate of Rachel Arevalo and all wrongful death beneficiaries/statutory distributees of Rachel Arevalo. The premature death of Rachel Arevalo was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Tex. Civ. Prac. & Rem. Code §71.001, et seq., Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 7. Plaintiff Betty Armstrong is a citizen of the City of Morganton, State of North Carolina. At all pertinent times, including from approximately 1960 to 2005, Plaintiff Betty Armstrong purchased and applied talcum powder in the States of Arizona, California, Virginia, and North Carolina. In or around October 2013, Plaintiff Betty Armstrong was diagnosed with ovarian cancer, which developed in the State of North Carolina. Plaintiff Betty Armstrong developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result 12 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 13 of 90 PageID: 1328 E lectronically Filed - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Betty Armstrong has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Betty Armstrong has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Betty Armstrong applied talcum powder in the States of Arizona, California, Virginia, and North Carolina. 8. Plaintiff Bertha Barmes is a citizen of the City of Vincennes, State of Indiana. At all pertinent times, including from approximately 1960 to 2007, Plaintiff Bertha Barmes purchased and applied talcum powder in the State of Indiana. In or around September 2007, Plaintiff Bertha Barmes was diagnosed with ovarian cancer, which developed in the State of Indiana. Plaintiff Bertha Barmes developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Bertha Barmes has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Bertha Barmes has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Bertha Barmes applied talcum powder in the State of Indiana. 9. Plaintiff Del Baum, an adult whose principal place of residence is in the City of Riverton, State of Utah, brings this action individually and in his capacity as representative of the 13 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 14 of 90 PageID: 1329 E lectronically File d - C ity of S i L ouis - S eptem ber 29, 2 0 1 6 - 09:59 P M Estate of Mary Baum. Plaintiff Del Baum is pursuing this action due to the wrongfully-caused premature death of his wife, Mary Baum, on behalf the Estate of Mary Baum and all wrongful death beneficiaries/statutory distributees of Mary Baum. The premature death of Mary Baum was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Utah Code Ann. § 78B-3-106, Plaintiff Del Baum seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 10. Plaintiff Diana Bedrosian is a citizen of the City of Portland, State of Oregon. At all pertinent times, including from approximately 01/01/1983 to 12/31/2003, Plaintiff Diana Bedrosian purchased and applied talcum powder in the States of California and Oregon. In or around December 26, 2011, Plaintiff Diana Bedrosian was diagnosed with ovarian cancer, which developed in the States of California and/or Oregon. Plaintiff Diana Bedrosian developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Diana Bedrosian has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Diana 14 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 15 of 90 PageID: 1330 E lectronically Filed - C ity o f S i L ouis - S eptem ber 29, 201 6 - 09:59 P M Bedrosian has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Diana Bedrosian applied talcum powder in the States of California and Oregon. 11. Plaintiff Darlene Berdue is a citizen of the City of Dixon, State of California. At all pertinent times, including from approximately 1984 to 2014, Plaintiff Darlene Berdue purchased and applied talcum powder in the State of California. In or around October 2014, Plaintiff Darlene Berdue was diagnosed with ovarian cancer, which developed in the State of California. Plaintiff Darlene Berdue developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature 'of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Darlene Berdue has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Darlene Berdue has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Darlene Berdue applied talcum powder in the State of California. 12. Plaintiff Risa Bond is a citizen of the City of Kennedy State of Alabama. At all pertinent times, including from approximately 1965-2012 Plaintiff Risa Bond purchased and applied talcum powder in the State of Alabama. In or around June 2012, Plaintiff Risa Bond was diagnosed with ovarian cancer, which developed in the State- of Alabama. Plaintiff Risa Bond developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these 15 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 16 of 90 PageID: 1331 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M injuries, Plaintiff Risa Bond has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Risa Bond has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Risa Bond applied talcum powder in the State of Alabama. 13. Plaintiff Dawncina Burnell is a citizen of the City of Rockford, State of Illinois. At all pertinent times, including from approximately 1980 to March 2014, Plaintiff Dawncina Burnell purchased and applied talcum powder in the State of Illinois. In or around April 2014, Plaintiff Dawncina Burnell was diagnosed with ovarian cancer, which developed in the State of Illinois. Plaintiff Dawncina Burnell developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Dawncina Burnell has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Dawncina Burnell has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Dawncina Burnell applied talcum powder in the State of Illinois. 14. Plaintiff Peggy Caldwell is a citizen of the City of Paragould, State of Arkansas. At all pertinent times, including from approximately 1970 to 2012, Plaintiff Peggy Caldwell purchased and applied talcum powder in the States of Missouri and Arkansas. In or around April 2011, Plaintiff Peggy Caldwell was diagnosed with ovarian cancer, which developed in the State of Arkansas. Plaintiff Peggy Caldwell developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of 16 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 17 of 90 PageID: 1332 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Peggy Caldwell has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Peggy Caldwell has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Peggy Caldwell applied talcum powder in the States of Missouri and Arkansas. 15. Plaintiff Carolann Coleman is a citizen of the City of Palm Bay, State of Florida. At all pertinent times, including from approximately December 1962 to 2013, Plaintiff Carolann Coleman purchased and applied talcum powder in the States of Florida and Massachusetts. In or around December 2013, Plaintiff Carolann Coleman was diagnosed with ovarian cancer, which developed in the State of Florida. Plaintiff Carolann Coleman developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Carolann Coleman has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Carolann Coleman has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Carolann Coleman applied talcum powder in the States of Florida and Massachusetts. 16. Plaintiff Kelly Collevechio is a citizen of the City of Boothwyn State of Pennsylvania. At all pertinent times, including from birth (approximately 30 years), Plaintiff Kelly Collevechio purchased and applied talcum powder in the State of Pennsylvania. In or 17 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 18 of 90 PageID: 1333 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M around September 2013, Plaintiff Kelly Collevechio was diagnosed with ovarian cancer, which developed in the State of Pennsylvania. Plaintiff Kelly Collevechio developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Kelly Collevechio has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Kelly Collevechio has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Kelly Collevechio applied talcum powder in the State of Pennsylvania. 17. Plaintiff Dellajean Combs is a citizen of the City of Moraga, State of California. At all pertinent times, including from approximately 1962 to June 2006, Plaintiff Dellajean Combs purchased and applied talcum powder in the States of Michigan, Virginia, Maryland, and California. In or around 2015, Plaintiff Dellajean Combs was diagnosed with ovarian cancer, which developed in the State of California. Plaintiff Dellajean Combs developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Dellajean Combs has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Dellajean Combs has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, 18 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 19 of 90 PageID: 1334 E lectronically Filed - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M Plaintiff Dellajean Combs applied talcum powder in the States of Michigan, Virginia, Maryland, and California. 18. Plaintiff Sarina Cook is a citizen of the City of Claremont, State of North Carolina. At all pertinent times, including from approximately 1990 to 2010, Plaintiff Sarina Cook purchased and applied talcum powder in the State of North Carolina. In or around July 2010, Plaintiff Sarina Cook was diagnosed with ovarian cancer, which developed in the State of North Carolina. Plaintiff Sarina Cook developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Sarina Cook has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Sarina Cook has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Sarina Cook applied talcum powder in the State of North Carolina. 19. Plaintiff Tosha Davis, an adult whose principal place of residence is in the city of San Bernardino, State of California, brings this action individually and in her capacity as representative of the Estate of Shawn Davis. Plaintiff Tosha Davis is pursuing this action due to the wrongfully caused premature death of her sister, Shawn Davis, on behalf the Estate of Shawn Davis and all wrongful death beneficiaries/statutory distributees of Shawn Davis. The premature death of Shawn Davis was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent 19 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 20 of 90 PageID: 1335 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to California Code of Civil Procedure §§ 377.60, et seq., Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 20. Plaintiff Carmen De La Cordad Diaz is a citizen of the City of Guaynabo, State of Puerto Rico. At all pertinent times, including from approximately 2007 to 2014, Plaintiff Carmen De La Cordad Diaz purchased and applied talcum powder in the State of Puerto Rico. In or around October 2015, Plaintiff Carmen De La Cordad Diaz was diagnosed with ovarian cancer, which developed in the State of Puerto Rico. Plaintiff Carmen De La Cordad Diaz developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Carmen De La Cordad Diaz has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Carmen De La Cordad Diaz has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Carmen De La Cordad Diaz applied talcum powder in the State of Puerto Rico. 21. Plaintiff Diana Divine is a citizen of the City of Los Angeles, State of California. At all pertinent times, including from approximately May 1980 to March 2016, Plaintiff Diana Divine purchased and applied talcum powder in the States of California and Illinois. In or around October 2014, Plaintiff Diana Divine was diagnosed with ovarian cancer, which 20 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 21 of 90 PageID: 1336 E lectronically Filed - C ity of S i L ouis - S ep tem b er 29 , 20 16 - 09 :59 P M developed in the State of California. Plaintiff Diana Divine developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Diana Divine has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Diana Divine has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Diana Divine applied talcum powder in the States of California and Illinois. 22. Plaintiff Judy Dulaney is a citizen of the City of Bluff City, State of Tennessee. At all pertinent times, including from approximately 1967 to 2016, Plaintiff Judy Dulaney purchased and applied talcum powder in the State of Tennessee. In or around July 8, 2010, Judy Dulaney was diagnosed with ovarian cancer, which developed in the State of Tennessee. Plaintiff Judy Dulaney developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Judy Dulaney has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Judy Dulaney has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Judy Dulaney applied talcum powder in the State of Tennessee. 23. Plaintiff Melva Dunn is a citizen of the City of Boley, State of Oklahoma. At all pertinent times, including from approximately 1966-1990s, Plaintiff Melva Dunn purchased and 21 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 22 of 90 PageID: 1337 E lectronically Filed - City of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M applied talcum powder in the State of Oklahoma. In or around May 2012, Plaintiff Melva Dunn was diagnosed with ovarian cancer, which developed in the State of Oklahoma. Plaintiff Melva Dunn developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Melva Dunn has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Melva Dunn has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Melva Dunn applied talcum powder in the State of Oklahoma. 24. Plaintiff Veronda Jane Evans is a citizen of the City of Baltimore, State of Maryland. At all pertinent times, including from approximately 1960 to 2014, Plaintiff Veronda Jane Evans purchased and applied talcum powder in the State of Maryland. In or around October 2013, Plaintiff Veronda Jane Evans was diagnosed with uterine cancer, which developed in the State of Maryland. Plaintiff Veronda Jane Evans developed uterine cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Veronda Jane Evans has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Veronda Jane Evans has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Veronda Jane Evans applied talcum powder in the State of Maryland. 22 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 23 of 90 PageID: 1338 E lectronically Filed - C ity of S i L ouis - S ep tem b er 29 , 2016 - 09 :59 P M 25. Plaintiff Carla Evans is a citizen of the City of Columbus, State of Ohio. At all pertinent times, including from approximately 1970 to 2014, Plaintiff Carla Evans purchased and applied talcum powder in the State of Ohio. In or around December 2014, Plaintiff Carla Evans was diagnosed with ovarian cancer, which developed in the State of Ohio. Plaintiff Carla Evans developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Carla Evans has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Carla Evans has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Carla Evans applied talcum powder in the State of Ohio. 26. Plaintiff Evelyn Fleming is a citizen of the City of Oakfield, State of Wisconsin. At all pertinent times, including from approximately January 1965 to April 1987, Plaintiff Evelyn Fleming purchased and applied talcum powder in the State of Illinois. In or around 2004, Plaintiff Evelyn Fleming was diagnosed with ovarian cancer, which developed in the State of Illinois. Plaintiff Evelyn Fleming developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Evelyn Fleming has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Evelyn Fleming has 'otherwise been damaged in a personal and 23 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 24 of 90 PageID: 1339 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M pecuniary nature. At all pertinent times, Plaintiff Evelyn Fleming applied talcum powder in the State of Illinois. 27. Plaintiff Catherine Fogg is a citizen of the City of Raleigh, State of North Carolina. At all pertinent times, including from approximately 1966 to 2013, Plaintiff Catherine Fogg purchased and applied talcum powder in the State of North Carolina. In or around November 2010, Plaintiff Catherine Fogg was diagnosed with ovarian cancer, which developed in the State of North Carolina. Plaintiff Catherine Fogg developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Catherine Fogg has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Catherine Fogg has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Catherine Fogg applied talcum powder in the State of North Carolina. 28. Plaintiff Bryan Friend, an adult whose principal place of residence is in the City of Hollister, State of California, brings this action individually and in his capacity as representative of the Estate of Darlene Friend. Plaintiff Bryan Friend is pursuing this action due to the wrongfully caused premature death of his wife, Darlene Friend, on behalf the Estate of Darlene Friend and all wrongful death beneficiaries/statutory distributees of Darlene Friend. The premature death of Darlene Friend was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and 24 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 25 of 90 PageID: 1340 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to CA Code of Civil Procedure, Sections 377.30 and 377.60, Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 29. Plaintiff Dawn Gilbert is a citizen of the City of Hadley, State of New York. At all pertinent times, including from approximately 1980 to 2012, Plaintiff Dawn Gilbert purchased and applied talcum powder in the State of New York. In or around October 2013, Plaintiff Dawn Gilbert was diagnosed with ovarian cancer, which developed in the State of New York. Plaintiff Dawn Gilbert developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Dawn Gilbert has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Dawn Gilbert has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Dawn Gilbert applied talcum powder in the State of New York. 30. Plaintiff Maria Gomez is a citizen of the City of Paramount, State of California. At all pertinent times, including from approximately 1982 to 2012, Plaintiff Maria Gomez purchased and applied talcum powder in the State of California. In or around October 2014, Plaintiff Maria Gomez was diagnosed with ovarian cancer, which developed in the State of 25 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 26 of 90 PageID: 1341 E lectronically F iled - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M California. Plaintiff Maria Gomez developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Maria Gomez has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Maria Gomez has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Maria Gomez applied talcum powder in the State of California. 31. Plaintiff Edward Gregory, an adult whose principal place of residence is in the City of Grafton, State of Ohio, brings this action individually and in his capacity as representative of the Estate of Vicki Gregory. Plaintiff Edward Gregory is pursuing this action due to the wrongfully caused premature death of his wife, Vicki Gregory, on behalf the Estate of Vicki Gregory and all wrongful death beneficiaries/statutory distributees of Vicki Gregory. The premature death of Vicki Gregory was the direct and proximate result of her application of talcum powder and subsequent *ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Ohio Rev. Code § 2125, et seq., Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 26 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 27 of 90 PageID: 1342 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 32. Plaintiff Patricia Guyon is a citizen of the City of Shelbyville, State of Kentucky. At all pertinent times, including from approximately 2001 to June 2011, Plaintiff Patricia Guyon purchased and applied talcum powder in the States of Pennsylvania and Kentucky. In or around December 2015, Plaintiff Patricia Guyon was diagnosed with ovarian cancer, which developed in the State of Kentucky. Plaintiff Patricia Guyon developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Patricia Guyon has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Patricia Guyon has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Patricia Guyon applied talcum powder in the States of Pennsylvania and Kentucky. 33. Plaintiff Jadwiga Guzy is a citizen of the City of Lancaster, State of Pennsylvania. At all pertinent times, including from approximately 2000 to 2015, Plaintiff Jadwiga Guzy purchased and applied talcum powder in the State of Pennsylvania. In or around 2015, Plaintiff Jadwiga Guzy was diagnosed with ovarian cancer, which developed in the State of Pennsylvania. Plaintiff Jadwiga Guzy developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Jadwiga Guzy has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of 27 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 28 of 90 PageID: 1343 E lectronically File d - C ity of S t. Louis - S ept em ber 29, 2016 - 09 :59 P M enjoyment of life, and Plaintiff Jadwiga Guzy has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Jadwiga Guzy applied talcum powder in the State of Pennsylvania. 34. Plaintiff Tracianne Hartnett, an adult whose principal place of residence is in Beaumont, State of TX, brings this action individually and in her capacity as representative of the Estate of Lenora J. Green. Plaintiff Tracianne Hartnett is pursuing this action due to the wrongfully caused premature death of her mother, Lenora J. Green, on behalf the Estate of Lenora J. Green and all wrongful death beneficiaries/statutory distributees of Lenora J. Green. The premature death of Lenora J. Green was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Tex. Civ. Prac. & Rem. Code Ann., Sections 71.001 et al and 71.021, Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 35. Plaintiff Debra M. Haynes is a citizen of the City of Staten Island, State of NY. At all pertinent times, including from early childhood through 2015, Plaintiff Debra M. Haynes purchased and applied talcum powder in the State of NY. In or around October 2013, Plaintiff Debra M. Haynes was diagnosed with ovarian cancer, which developed in the State of NY. • Plaintiff Debra M. Haynes developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder 28 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 29 of 90 PageID: 1344 E lectronically F ile d - C ity of S t. Louis - S ep tem b er 29 , 2 0 1 6 - 0 9 :59 P M and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Debra M. Haynes has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Debra M. Haynes has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Debra M. Haynes applied talcum powder in the State of NY. 36. Plaintiff Lee Heller, an adult whose principal place of residence is in the City of Kresgeville, State of Pennsylvania, brings this action individually and in his capacity as Personal Representative of the Estate of Sandra Heller. Plaintiff Lee Heller is pursuing this action due to the wrongfully caused premature death of his wife, Sandra Heller, on behalf the Estate of Sandra Heller and all wrongful death beneficiaries/statutory distributees of Sandra Heller. The premature death of Sandra Heller was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to 42 Pa. C.S. § 8301, et seq., Plaintiff seeks damages for Sandra Heller's loss of future earnings, loss of Sandra Heller's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 37. Plaintiff Lisa Hill is a citizen of the City of Cat Spring, State of Texas. At all pertinent times, Plaintiff Lisa Hill purchased and applied talcum powder in the State of Texas. In or around December 10, 2014, Plaintiff Lisa Hill was diagnosed with ovarian cancer, which 29 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 30 of 90 PageID: 1345 E lectronically File d - C ity of S t. Louis - S eptem b er 29, 2 0 1 6 - 09:59 P M developed in the State of Texas. Plaintiff Lisa Hill developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Lisa Hill has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Lisa Hill has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Lisa Hill applied talcum powder in the State of Texas. 38. Plaintiff Sabrina Jackson is a citizen of the City of Detroit, State of Michigan. At all pertinent times, including from approximately 1984 to 2014, Plaintiff Sabrina Jackson purchased and applied talcum powder in the State of Michigan. In or around 2011, Plaintiff Sabrina Jackson was diagnosed with ovarian cancer, which developed in the State of Michigan. Plaintiff Sabrina Jackson developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Sabrina Jackson has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Sabrina Jackson has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Sabrina Jackson applied talcum powder in the State of Michigan. 30 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 31 of 90 PageID: 1346 E lectronically File d - C ity of S t. Louis 7 Se ptem ber 29, 2016 - 09:59 P M 39. Plaintiff Gregory Johner, an adult whose principal place of residence is in the City of St. Louis, State of Missouri, brings this action individually and in his capacity as representative of the Estate of Diane Johner. Plaintiff Gregory Johner is pursuing this action due to the wrongfully caused premature death of his wife, Diane Johner, on behalf the Estate of Diane Johner and all wrongful death beneficiaries/statutory distributees of Diane Johner. The premature death of Diane Johner was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to 537.080 of the Missouri Revised Statutes, which is commonly known as the Missouri "Wrongful Death Act," Plaintiff, on behalf of the class of persons entitled to recover under the Wrongful Death Act, seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 40. Plaintiff Iva Kaminsky is a citizen of the City of Oak Park, State of Michigan. At all pertinent times, including from approximately 1953 to 2012, Plaintiff Iva Kaminsky purchased and applied talcum powder in the State of Michigan. In or around November 2013, Plaintiff Iva Kaminsky was diagnosed with ovarian cancer, which developed in the State of Michigan. Plaintiff Iva Kaminsky developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. 31 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 32 of 90 PageID: 1347 E lectronically Filed - C ity of S t. Louis - S eptem be r 29, 2016 - 09:59 P M As a direct and proximate result of these injuries, Plaintiff Iva Kaminsky has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Iva Kaminsky has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Iva Kaminsky applied talcum powder in the State of Michigan. 41. Plaintiff Kathleen Kelly is a citizen of the City of Franklinville State of New Jersey. At all pertinent times, including from approximately 1970-2016, Plaintiff Kathleen Kelly purchased and applied talcum powder in the State of New Jersey. In or around April 2009, Plaintiff Kathleen Kelly was diagnosed with ovarian cancer, which developed in the State of New Jersey. Plaintiff Kathleen Kelly developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Kathleen Kelly has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Kathleen Kelly has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Kathleen Kelly applied talcum powder in the State of New Jersey. 42. Plaintiff Monica Kent is a citizen of the City of Corona, State of California. At all pertinent times, including from approximately February 1973 to August 2014, Plaintiff Monica Kent purchased and applied talcum powder in the State of California. In or around October 2014, Plaintiff Monica Kent was diagnosed with ovarian cancer, which developed in the State of California. Plaintiff Monica Kent developed ovarian cancer, and suffered effects attendant 32 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 33 of 90 PageID: 1348 E lectronically File d - C ity of S t. Louis - S ept em ber 29, 201 6 - 09:59 P M thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Monica Kent has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Monica Kent has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Monica Kent applied talcum powder in the State of California. 43. Plaintiff Beth Kucharski is a citizen of the City of Little River, State of South Carolina. At all pertinent times, including from approximately 1970 to 2015, Plaintiff Beth Kucharski purchased and applied talcum powder in the State of South Carolina. In or around May 2014, Plaintiff Beth Kucharski was diagnosed with ovarian cancer, which developed in the State of South Carolina. Plaintiff Beth Kucharski developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Beth Kucharski has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Beth Kucharski has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Beth Kucharski applied talcum powder in the State of South Carolina. 44. Plaintiff Sharon Marchese is a citizen of the City of Bristol, State of Pennsylvania. At all pertinent times, including from birth (approximately 40-50 years), Plaintiff 33 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 34 of 90 PageID: 1349 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M Sharon Marchese purchased and applied talcum powder in the States of Pennsylvania and New Mexico. In or around December 2015, Plaintiff Sharon Marchese was diagnosed with ovarian cancer, which developed in the State of Pennsylvania. Plaintiff Sharon Marchese developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Sharon Marchese has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Sharon Marchese has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Sharon Marchese applied talcum powder in the States of Pennsylvania and New Mexico. 45. Plaintiff Theresa McDowell, an adult whose principal place of residence is in the City of Lexington, State of North Carolina, brings this action in her capacity as personal representative of the Estate of Audrey Blount. Plaintiff Theresa McDowell is pursuing this action due to the wrongfully caused premature death of Audrey Blount, on behalf the Estate of Audrey Blount and all wrongful death beneficiaries/statutory distributees of Audrey Blount. The premature death of Audrey Blount was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to G.S. §28-A-18-2, et seq., Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her 34 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 35 of 90 PageID: 1350 E lectronically Filed - C ity of S i L ouis - S eptem ber 29, 2016 - 09:59 P M estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 46. Plaintiff Brenda McGee is a citizen of the City of Moncks Corner, State of South Carolina. At all pertinent times, including from approximately 1980 to 2013, Plaintiff Brenda McGee purchased and applied talcum powder in the State of South Carolina. In or around October 2013, Plaintiff Brenda McGee was diagnosed with ovarian cancer, which developed in the State of South Carolina. Plaintiff Brenda McGee developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Brenda McGee has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Brenda McGee has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Brenda McGee applied talcum powder in the State of South Carolina. 47. Plaintiff Mary Jo Mills is a citizen of the City of Forest, State of Virginia. At all pertinent times, including from approximately 1970 to 2001, Plaintiff Mary Jo Mills purchased and applied talcum powder, including while Plaintiff Mary Jo Mills was living and residing in the State of Missouri. Plaintiff Mary Jo Mills is currently a property owner in the State of Missouri. In or around 2007 Plaintiff Mary Jo Mills was diagnosed with ovarian cancer, while residing in the State of Virginia. Plaintiff Mary Jo Mills developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendant' wrongful and negligent conduct in the 35 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 36 of 90 PageID: 1351 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M research, development, testing, manufacture, production, promotion, distribution, marketing and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Mary Jo Mills has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Mary Jo Mills has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Mary Jo Mills first applied talcum powder in the State of Missouri and substantially used talcum powder while living and residing in the State of Missouri. 48. Plaintiff Teressa Mills, an adult whose principal place of residence is in the City of Charlotte, State of North Carolina, brings this action individually and in her capacity as representative of the Estate of Ella Frazier. Plaintiff Teressa Mills is pursuing this action due to the wrongfully caused premature death of her mother, Ella Frazier, on behalf the Estate of Ella Frazier and all wrongful death beneficiaries/statutory distributees of Ella Frazier. The premature death of Ella Frazier was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to G.S. §28-A-18-2, et seq., Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 49. Plaintiff Charlene Montgomery is a citizen of the City of Jeffersonville, State of Indiana. At all pertinent times, including from approximately 1975 to 2012, Plaintiff Charlene Montgomery purchased and applied talcum powder in the State of Indiana. In or around 2006, 36 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 37 of 90 PageID: 1352 E lectronically Filed - C ity of S i L oui s - S eptem ber 29, 201 6 - 09:59 P M Plaintiff Charlene Montgomery was diagnosed with ovarian cancer, which developed in the State of Indiana. Plaintiff Charlene Montgomery developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Charlene Montgomery has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Charlene Montgomery has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Charlene Montgomery applied talcum powder in the State of Indiana. 50. Plaintiff Julia Moore, an adult whose principal place of residence is in the Fort Lauderdale, State of Florida, brings this action individually and in her capacity as representative of the Estate of Paulette Maria McGirt. Plaintiff Julia Moore is pursuing this action due to the wrongfully caused premature death of her Mother, Paulette Maria McGirt on behalf of the Estate of Paulette Maria McGirt and all wrongful death beneficiaries/statutory distributees of Paulette Maria McGirt. The premature death of Paulette Maria McGirt was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to section 768.16 of the Florida Wrongful Death Act. Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent 37 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 38 of 90 PageID: 1353 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 51. Plaintiff Naomi Morales is a citizen of the City of Alhambra, State of California. At all pertinent times, including from approximately 1956 to 2004, Plaintiff Naomi Morales purchased and applied talcum powder in the State of California. In or around June 2005, Plaintiff Naomi Morales was diagnosed with ovarian cancer, which developed in the State of California. Plaintiff Naomi Morales developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Naomi Morales has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Naomi Morales has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Naomi Morales applied talcum powder in the State of California. 52. Plaintiff Lynn Nathan is a citizen of the City of Denver, State of Colorado. At all pertinent times, including from approximately 1966 to 2006, Plaintiff Lynn Nathan purchased and applied talcum powder in the State of Colorado. In or around May 2009, Plaintiff Lynn Nathan was diagnosed with ovarian cancer, which developed in the State of Colorado. Plaintiff Lynn Nathan developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and 38 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 39 of 90 PageID: 1354 E lectronically F ile d - C ity of S t. Lou is - S eptem ber 29, 2 0 1 6 - 09:59 P M proximate result of these injuries, Plaintiff Lynn Nathan has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Lynn Nathan has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Lynn Nathan applied talcum powder in the State of Colorado. 53. Plaintiff Wendy Nyman is a citizen of the City of Shingle Springs, State of California. At all pertinent times, including from approximately 1964 through 2016, Plaintiff Wendy Nyman purchased and applied talcum powder in the State of California. In or around December 2014, Plaintiff Wendy Nyman was diagnosed with ovarian cancer, which developed in the State of California. Plaintiff Wendy Nyman developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Wendy Nyman has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Wendy Nyman has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Wendy Nyman applied talcum powder in the State of California. • 54. Plaintiff Abbie 011iver is a citizen of the City of Crowley, State of Louisiana. At all pertinent times, including from approximately 1975 to 2010, Plaintiff Abbie 011iver purchased and applied talcum powder in the States of Louisiana, California, Texas & Pennsylvania. In or around August 2010, Plaintiff Abbie 011iver was diagnosed with ovarian cancer, which developed in the State of Louisiana. Plaintiff Abbie 011iver developed ovarian 39 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 40 of 90 PageID: 1355 E lectronically File d - C ity of S i L ouis - S eptem ber 29, 2 0 1 6 - 09:59 PM cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Abbie 011iver has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Abbie 011iver has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Abbie 011iver applied talcum powder in the States of Louisiana, California, Texas & Pennsylvania. 55. Plaintiff Donna Peterson, an adult whose principal place of residence is in the City of Birmingham, State of Alabama, brings this action individually and in her capacity as representative of the Estate of Sylvia Paige. Plaintiff Donna Peterson is pursuing this action due to the wrongfully caused premature death of her mother, Sylvia Paige, on behalf the Estate of Sylvia Paige and all wrongful death beneficiaries/statutory distributees of Sylvia Paige. The premature death of Sylvia Paige was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Ala. Code § 6-5-410, et seq., Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 40 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 41 of 90 PageID: 1356 E lectronically File d - City of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 56. Plaintiff Sharon Pike is a citizen of the City of Pell City, State of Alabama. At all pertinent times, including from approximately 1981 to 2014, Plaintiff Sharon Pike purchased and applied talcum powder in the State of Alabama. In or around September 29, 2014, Plaintiff Sharon Pike was diagnosed with ovarian cancer, which developed in the State of Alabama. Plaintiff Sharon Pike developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Sharon Pike has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Sharon Pike has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Sharon Pike applied talcum powder in the State of Alabama. 57. Plaintiff Charles Rios, an adult whose principal place of residence is in the city of Little Canada, State of Minnesota, brings this action individually and in his capacity as representative of the Estate of Debra Rios. Plaintiff Charles Rios is pursuing this action due to the wrongfully caused premature death of his wife, Debra Rios, on behalf the Estate of Debra Rios and all wrongful death beneficiaries/statutory distributees of Debra Rios. The premature death of Debra Rios was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Minn. Stat. § 573.02, et seq., Plaintiff 41 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 42 of 90 PageID: 1357 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 58. Plaintiff Damon Rose, a citizen of the City of Akron, State of Ohio, brings this action individually and in his capacity as Executor of the Estate of Brenda Rose. Plaintiff Damon Rose is pursuing this action due to the wrongfully caused premature death of his wife, Brenda Rose, on behalf of himself, the Estate of Brenda Rose, and all wrongful death beneficiaries/statutory distributees of Brenda Rose. At all pertinent times, including from approximately 01/01/1984-9/6/2015, Decedent Brenda Rose purchased and applied talcum powder in the State of Kansas. In or around September 6, 2006, Decedent Brenda Rose was diagnosed with ovarian cancer, which developed in the State of Kansas. Decedent Brenda Rose developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. The premature death of Brenda Rose was the direct and proximate result of her routine applications of talcum powder and subsequent ovarian cancer diagnosis. Pursuant to Sections 60-1901 and 60-1801 of the Kansas Statutes Annotated, commonly referred to as the "Wrongful Death Act" and "Survival Statute," respectively, Plaintiff Damon Rose seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to her premature death, medical, funeral, and burial expenses, loss of services and support, punitive and/or exemplary damages, and all other damages or relief allowable at law and equity. 42 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 43 of 90 PageID: 1358 E lectronically File d - C ity o f S t. Lo uis - S ep tem b er 29, 2 0 1 6 - 0 9 :59 P M 59. Plaintiff Mary Rucker is a citizen of the City of Cheshire, State of Connecticut. At all pertinent times, including from approximately February 1972 to August 2013, Plaintiff Mary Rucker purchased and applied talcum powder in the States of California and Connecticut. In or around October 2013, Plaintiff Mary Rucker was diagnosed with ovarian cancer, which developed in the State of Connecticut. Plaintiff Mary Rucker developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Mary Rucker has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Mary Rucker has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Mary Rucker applied talcum powder in the States of California and Connecticut. 60. Plaintiff Georgianna Russo is a citizen of the City of Plantsville, State of Connecticut. At all pertinent times, including from approximately 1970 to 2015, Plaintiff Georgianna Russo purchased and applied talcum powder in the State of Connecticut. In or around October 28, 2009, Georgianna Russo was diagnosed with ovarian cancer, which developed in the State of Connecticut. Plaintiff Georgianna Russo developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Georgianna Russo has incurred and will incur medical expenses in the future, has endured and will endure 43 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 44 of 90 PageID: 1359 E lectronically File d - C ity of S t. Lou is - S ep tem b er 29, 2016 - 09 :59 P M • pain and suffering and loss of enjoyment of life, and Plaintiff Georgianna Russo has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Georgianna Russo applied talcum powder in the State of Connecticut. 61. Plaintiff Rita Ryan is a citizen of the City of Garden City, State of New York. At all pertinent times, including from approximately 1961 through 2016, Plaintiff Rita Ryan purchased and applied talcum powder in the State of New York. In or around November 2014, Plaintiff Rita Ryan was diagnosed with ovarian cancer, which developed in the State of New York. In or around August 2016, Plaintiff Rita Ryan was diagnosed with recurrent ovarian cancer, which developed in the State of New York. Plaintiff Rita Ryan developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Rita Ryan has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Rita Ryan has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Rita Ryan applied talcum powder in the State of New York. 62. Plaintiff Deanah Shearer, an adult whose principal place of residence is in the City of Carrollton, State of Georgia, brings this action individually and in her capacity as representative of the Estate of Linda Brooks. Plaintiff Deanah Shearer is pursuing this action due to the wrongfully caused premature death of her mother, Linda Brooks, on behalf the Estate of Linda Brooks and all wrongful death beneficiaries/statutory distributees of Linda Brooks. The premature death of Linda Brooks was the direct and proximate result of her application of talcum 44 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 45 of 90 PageID: 1360 rn CD CI 8 powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and eZ" 0 negligent conduct in the research, development, testing, manufacture, production, promotion, 0 distribution, marketing, and sale of talcum powder, and pursuant to OCGA § 51-4-1; et seq., CD Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her C7 estate, pain and suffering endured by decedent prior to premature death, medical, funeral and 9), Co burial expenses, loss of services and support, and other damages as allowed by law. CD 63. Plaintiff Dayna Shliger is a citizen of the City of Danbury, State of Connecticut. (1, At all pertinent times, including from approximately 1986 - 2016, Plaintiff Dayna Shliger purchased and applied talcum powder in the States of Connecticut, New Jersey, New York, Florida and Georgia. In or around October 2, 2013 and again on or about March 16, 2016 Plaintiff Dayna Shliger was diagnosed with Ovarian Cancer, which developed as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in research, development, testing, manufacturing, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Dayna Shliger has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Dayna Shliger has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Dayna Shliger applied talcum powder in the States of Connecticut, New York, Florida, Georgia and New Jersey. 64. Plaintiff Shirley Sims is a citizen of the City of Douglasville, State of Georgia. At all pertinent times, including from approximately 1961 to 1996, Plaintiff Shirley Sims purchased and applied talcum powder in the States of Georgia, Alabama, and North Carolina. In or around 45 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 46 of 90 PageID: 1361 E lectronic ally Filed - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M October 2014, Plaintiff Shirley Sims was diagnosed with ovarian cancer, which developed in the State of Georgia. Plaintiff Shirley Sims developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Shirley Sims has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Shirley Sims has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Shirley Sims applied talcum powder in the States of Georgia, Alabama, and North Carolina. 65. Plaintiff Cynthia Smith is a citizen of the City of Elizabeth, State of Pennsylvania. At all pertinent times, including from approximately 01/01/1973 to approximately 04/01/2016, Plaintiff Cynthia Smith purchased and applied talcum powder in the States of Pennsylvania and New York. In or around June 8, 2015, Plaintiff Cynthia Smith was diagnosed with ovarian cancer, which developed in the States of Pennsylvania and/or New York. Plaintiff Cynthia Smith developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Cynthia Smith has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Cynthia Smith has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Cynthia Smith applied talcum powder in the States of Pennsylvania and/or New York. 46 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 47 of 90 PageID: 1362 E lectronically File d - C ity of S t. Louis - S ep tem ber 29, 201 6 - 09:59 P M 66. Plaintiff Catherine Sneed is a citizen of the City of New Castle, State of Indiana. At all pertinent times, including from approximately 1979 to 2013, Plaintiff Catherine Sneed purchased and applied talcum powder in the State of Indiana. In or around February 2008, Plaintiff Catherine Sneed was diagnosed with ovarian cancer, which developed in the State of Indiana. Plaintiff Catherine Sneed developed ovarian cancer, and suffered effects attendant thereto, as a 'direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Catherine Sneed has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Catherine Sneed has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Catherine Sneed applied talcum powder in the State of Indiana. 67. Plaintiff James Stoddard, an adult whose principal place of residence is in San Antonio, State of Texas, brings this action individually and in his capacity as representative of the Estate of Sharon Stoddard. Plaintiff James Stoddard is pursuing this action due to the wrongfully caused premature death of his wife, Sharon Stoddard, on behalf the Estate of Sharon Stoddard and all wrongful death beneficiaries/statutory distributees of Sharon Stoddard. The premature death of Sharon Stoddard was the direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to Tex. Civ. Prac. & Rem. Code 47 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 48 of 90 PageID: 1363 E lectronically F iled - C ity of S t. Louis - S ep tem b er 29 , 2 0 1 6 - 0 9 :59 P M Ann., Sections 71.001 et al and 71.021, Plaintiff seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law.' 68. Plaintiff Harold Strassberg, a citizen of the City of Akron, State of Ohio, brings this action individually due to the wrongfully caused premature death of his wife, Dorothy Strassberg. At all pertinent times, including from approximately 01/01/2000 to 12/31/2011, Decedent Dorothy Strassberg purchased and applied talcum powder in the State of Pennsylvania. In or around December 2010, Decedent Dorothy Strassberg was diagnosed with ovarian cancer, which developed in the State of Pennsylvania. Plaintiff Dorothy Strassberg developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. The premature death of Dorothy Strassberg was the direct and proximate result of her routine applications of talcum powder and subsequent ovarian cancer diagnosis. Pursuant to 42 Pa. Cons. Stat. Ann. § 8301, commonly referred to as the "Wrongful Death Act," Plaintiff Harold Strassberg seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to her premature death, medical, funeral, and burial expenses, loss of services and support, punitive damages, and all other damages or relief allowable at law and equity. 69. Plaintiff Frances Swanson is a citizen of the City of Flagstaff, State of Arizona. At all pertinent times, including from approximately 1968 to 2013, Plaintiff Frances Swanson purchased and applied talcum powder in the State of Arizona. In or around October 48 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 49 of 90 PageID: 1364 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M 2014, Plaintiff Frances Swanson was diagnosed with ovarian cancer, which developed in the State of Arizona. Plaintiff Frances Swanson developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Frances Swanson has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Frances Swanson has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Frances Swanson applied talcum powder in the State of Arizona. 70. Plaintiff Lynn Travis is a citizen of the City of Port Orchard, State of Washington. At all pertinent times, including from approximately 1966 to 2006, Plaintiff Lynn Travis purchased and applied talcum powder in the State of Washington. In or around October 2013, Plaintiff Lynn Travis was diagnosed with ovarian cancer, which developed in the State of Washington. Plaintiff Lynn Travis developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Lynn Travis has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Lynn Travis has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Lynn Travis applied talcum powder in the State of Washington. 49 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 50 of 90 PageID: 1365 E lectronically Filed - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 71. Plaintiff Debra VanPage is a citizen of the City of Breckenridge, State of Michigan. At all pertinent times, including from approximately 1969 to November 2013, Plaintiff Debra VanPage purchased and applied talcum powder in the State of Michigan. In or around November 2013, Plaintiff Debra VanPage was diagnosed with ovarian cancer, which developed in the State of Michigan. Plaintiff Debra VanPage developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Debra VanPage has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Debra VanPage has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Debra VanPage applied talcum powder in the State of Michigan. 72. Plaintiff Sameka Wheeler is a citizen of the City of Bossier City, State of Louisiana. At all pertinent times, including from approximately childhood until diagnosis. Plaintiff Sameka Wheeler purchased and applied talcum powder in the State of Louisiana. In or around July 1, 2014, Plaintiff Sameka Wheeler was diagnosed with ovarian cancer, which developed in the State of Louisiana. Plaintiff Sameka Wheeler developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Sameka Wheeler has incurred and will incur medical expenses in the future, has endured and will endure 50 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 51 of 90 PageID: 1366 E lectronically File d - C ity of S t. Louis - S ep tem ber 29, 2 0 1 6 - 09:59 P M pain and suffering and loss of enjoyment of life, and Plaintiff Sameka Wheeler has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Sameka Wheeler applied talcum powder in the State of Louisiana. 73. Plaintiff Dale Williams, a citizen of the City of Waco, State of Texas, brings this action individually and in his capacity as Executor of the Estate of Barby Williams. Plaintiff Dale Williams is pursuing this action due to the wrongfully caused premature death of his wife, Barby Williams, on behalf of himself, the Estate of Barby Willams, and all wrongful death beneficiaries/statutory distributees of Barby Williams. At all pertinent times, including from approximately 01/01/1970 to 11/13/2015, Decedent Barby Williams purchased and applied talcum powder in the States of Texas and Colorado. In or around February 2014, Decedent Barby Williams was diagnosed with ovarian cancer, which developed in the State of Texas. Plaintiff Barby Williams developed ovarian cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. The premature death of Barby Williams was the direct and proximate result of her routine applications of talcum powder and subsequent ovarian cancer diagnosis. Pursuant to the Texas Civil Practice and Remedies Code sections 71.004 and 71.021, commonly referred to as the "Wrongful Death Act" and "Survival Statute," respectively, Plaintiff Dale Williams seeks damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to her premature death, medical, funeral, and burial expenses, loss of services and support, punitive damages, and all other damages or relief allowable at law and equity. 51 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 52 of 90 PageID: 1367 E lectronically F ile d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 74. Plaintiff Deborah Wyatt is a citizen of the City of Bart°, State of Pennsylvania. At all pertinent times, beginning in approximately 1980, Plaintiff Deborah Wyatt purchased and applied talcum powder in the State of Pennsylvania. In or around November 2014, Plaintiff Deborah Wyatt was diagnosed with uterine cancer, which developed in the State of Pennsylvania. Plaintiff Deborah Wyatt developed uterine cancer, and suffered effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. As a direct and proximate result of these injuries, Plaintiff Deborah Wyatt has incurred and will incur medical expenses in the future, has endured and will endure pain and suffering and loss of enjoyment of life, and Plaintiff Deborah Wyatt has otherwise been damaged in a personal and pecuniary nature. At all pertinent times, Plaintiff Deborah Wyatt applied talcum powder in the State of Pennsylvania. 75. Plaintiff Bonnie Young, an adult whose principal place of residence is in the City of Lithonia, State of Georgia, brings this action individually and in his capacity as representative of the Estate of Sandra Young. Plaintiff Bonnie Young is pursuing this action due to the wrongfully caused premature death of Sandra Young, on behalf the Estate of Sandra Young and all wrongful death beneficiaries/statutory distributees of Sandra Young. The premature death of Sandra Young was the *direct and proximate result of her application of talcum powder and subsequent ovarian cancer diagnosis. As a direct and proximate result of the unreasonably dangerous and defective nature of taloum powder and Defendants' wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder, and pursuant to OCGA § 51-4-1, et seq., Plaintiff seeks 52 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 53 of 90 PageID: 1368 E lectronically Fi le d - City of S i L ouis - S eptem ber 29, 2 0 1 6 - 09:59 P M damages for decedent's loss of future earnings, loss of decedent's value to her estate, pain and suffering endured by decedent prior to premature death, medical, funeral and burial expenses, loss of services and support, and other damages as allowed by law. 76. Defendant, Johnson & Johnson, is a New Jersey corporation with its principal place of business in the State of New Jersey. 77. At all relevant times, Johnson & Johnson was engaged in the business of manufacturing, marketing, testing, promoting, selling, and/or distributing the PRODUCTS. At all relevant times, Johnson & Johnson regularly transacted, solicited, and conducted business in all States of the United States, including the State of Missouri. 78. Defendant Johnson and Johnson Consumer Incorporated f/k/a Johnson & Johnson Consumer Companies, Inc. is a New Jersey corporation with its principal place of business in the State of New Jersey. 79. At all relevant times, Johnson and Johnson Consumer Incorporated' was engaged in the business of manufacturing, marketing, testing, promoting, selling, and/or distributing the PRODUCTS. At all relevant times, Johnson and Johnson Consumer Incorporated regularly transacted, solicited, and conducted business in all States of the United States, including the State of Missouri. 80. Defendant Johnson & Johnson formulated, manufactured, marketed, tested, promoted, sold and distributed the PRODUCTS prior to Johnson & Johnson Consumer, Inc. f/k/a Johnson & Johnson Consumer Companies, Inc. coming into existence. 81. Defendant Imerys Talc America, Inc., f/k/a Luzenac America, Inc. is a Delaware corporation with its principal place of business in the State of California. 1 A11 allegations regarding actions taken by Johnson & Johnson Consumer, Inc. also include actions taken while that entity was known as Johnson & Johnson Consumer Companies, Inc. 53 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 54 of 90 PageID: 1369 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 82. At all relevant times, Imerys Talc America, Inc., f/k/a Luzenac America, Inc. (hereinafter described as "Imerys Talc" or "Imerys Talc America, Inc."), has been in the business of mining and distributing talcum powder for use in talcum powder based products, including the PRODUCTS. Imerys Talc is the successor or continuation of Luzenac America, Inc., and Imerys Talc America, Inc. is legally responsible for all liabilities incurred when it was known as Luzenac America, Inc. 83. At all relevant times, all Defendants were engaged in the research, development, manufacture, design, testing, sale and marketing of PRODUCTS, and introduced such products into interstate commerce with knowledge and intent that such products be sold in all States, including the States of Alabama, Arkansas, Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. VENUE 84. RSMo § 508.010, Missouri's general venue statute provides: Notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action. RSMo § 508.010.4 85. Plaintiff Janice Bahmler was living in St. Louis City when she first used the PRODUCTS, and therefore was "first injured by the wrongful acts or negligent conduct alleged" in this action in the City of St. Louis, Missouri. Therefore, venue is proper pursuant to RSMo § 508.010.4. 54 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 55 of 90 PageID: 1370 E lectronically Filed - C ity of S t. Louis - S eptem b er 29, 2 0 1 6 - 09:59 P M 86. Venue is further proper in this Court pursuant to RSMo § 508.010.4 because Plaintiff Janice Bahmler at all relevant times, purchased, used, and was exposed to the Products in the City of St. Louis, Missouri. ALLEGATIONS COMMON TO ALL COUNTS 87. Talc is a magnesium trisilicate that is mined from the earth. Talc is an inorganic mineral. The Defendant, Imerys Talc America, Inc., Vida Luzanec America, Inc. mined the talc contained in the PRODUCTS. 88. Talc is the main substance in talcum powders. The Johnson & Johnson Defendants manufactured the PRODUCTS. The PRODUCTS are composed almost entirely of talc. 89. At all relevant times, a feasible alternative to the PRODUCTS has existed. Cornstarch is an organic carbohydrate that is quickly broken down by the body with no known health effects. Cornstarch powders have been sold and marketed for the same uses with nearly the same effectiveness as the PRODUCTS. 90. At all relevant times, Defendant Imerys Talc2 mined the talc contained in the PRODUCTS. 91. At all relevant times, Imerys Talc continually advertised and marketed talc as safe for human use. 92. At all relevant times, Imerys Talc supplied its customers, including the Johnson & Johnson Defendants, with Material Safety Data Sheets ("MSDS") for talc, which were supposed to convey adequate health and warning information to its customers. 2 All allegations regarding actions taken by Imerys Talc also include actions taken while that entity was known as Luzenac America, Inc. 55 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 56 of 90 PageID: 1371 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 93. Historically, "Johnson's Baby Powder" has been a symbol of freshness, cleanliness, and purity. During the time in question, the Johnson & Johnson Defendants advertised and marketed this product as a symbol of "freshness" and "comfort," eliminating friction on the skin, absorbing "excess wetness" to keep skin feeling dry and comfortable, and "clinically proven gentle and mild." The Johnson & Johnson Defendants compelled women through advertisements to dust themselves with this product to mask odors. The bottle of "Johnson's Baby Powder" specifically targets women, stating: "For you, use every day to help feel soft, fresh, and comfortable."3 94. At all relevant times, the Johnson & Johnson Defendants advertised and marketed their "Shower to Shower" product as safe for use by women as evidenced in its slogan, "A sprinkle a day keeps odor away," and through advertisements such as: "Your body perspires in more places than just under your arms. Use SHOWER to SHOWER to feel dry, fresh, and comfortable throughout the day;" and "SHOWER to SHOWER can be used all over your body." 95. Plaintiffs used the PRODUCTS to dust their perineum for feminine hygiene purposes. This was an intended and foreseeable use of the PRODUCTS based on the advertising, marketing, and labeling of the PRODUCTS. 96. Upon information and belief, in 1971, the first study was conducted that suggested an association between talc and ovarian cancer. This study was conducted by Dr. WJ Henderson and others in Cardiff, Wales. 97. Upon information and belief, in 1982, the first epidemiologic study was performed on talc powder use in the female genital area. That study was conducted by Dr. Daniel Cramer and others. This study found a ninety-two percent increased risk of ovarian 3 Retailer Wal-Mart lists the labels for Johnson's Baby Powder, http://www.walmart.com/ip/Johnson-s-Baby- Powder-22-oz/10294007. 56 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 57 of 90 PageID: 1372 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M cancer with women who reported genital talc use. Shortly after this study was published, Dr. Bruce Semple of Johnson & Johnson came and visited Dr. Cramer about his study. Dr. Cramer advised Dr. Semple that Johnson & Johnson should place a warning on its talcum powders about the ovarian cancer risks so that women can make an informed decision about their health. 98. Upon information and belief, since approximately 1982, there have been approximately twenty-two additional epidemiologic studies providing data regarding the association of talc and ovarian cancer. Nearly all of these studies have reported an elevated risk of ovarian cancer associated with genital talc use in women. 99. Upon information and belief, in or about 1993, the United States National Toxicology Program published a study on the toxicity of non-asbestos form talc and found clear evidence of carcinogenic activity. Talc was found to be a carcinogen, with or without the presence of asbestos-like fibers.4 • 100. Upon information and belief, in response to the United States National Toxicology Program's study, the Cosmetic Toiletry and Fragrance Association (CTFA), now known as the PCPC, formed the Talc Interested Party Task Force (TIPTF). Johnson & Johnson, Inc., Johnson and Johnson Consumer Incorporated, and Luzenac-now known as Imerys Talc- were members of the CTFA and were the primary actors and contributors of the TIPTF. The stated purpose of TIPTF was to pool financial resources of these companies in order to collectively defend talc use at all costs and to prevent regulation of any type over this industry. 4 Inhalation Toxicology Research Institute Annual Report, 1993 - 1994, https://www.google.com/url?sa=t&rct=j &q=&esrc=s&source=web&cd=5 &ved=OCEE0FjAE&url=http%3A%2F% 2Fwww.dtic.mil%2Fget-tr- doc%2Fpdf%3FAD%3 DA DA 292037&ei =XX41VM fxPlb I sA S fv1KwCA&usg=A F0j CNGnPtuTic4 Y RHp3v0 V FPJ 10V2y H2 w&si g2=WTznSIZK9Goj kDadkub0Sw&bvm=bv.74649129.d.cWc&cad=rja. 57 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 58 of 90 PageID: 1373 E lectronically File d - C ity of S t. Louis - S eptem b er 29 , 2016 - 09:59 PM TIPTF hired scientists to perform biased research regarding the safety of talc. TIPTF members, including Johnson & Johnson and Luzenac, then edited these scientific reports hired by this group prior to the submissions of these scientific reports to governmental agencies. In addition, members of TIPTF knowingly released false information about the safety of talc to the consuming public and used political and economic influence on regulatory bodies regarding talc. These activities were conducted by these companies and organizations over the past four decades in an effort to prevent regulation of talc and to create confusion to the consuming public about the true hazards of talc and its association to ovarian cancer. 101. Upon information and belief, on or about November 19, 1994, the Cancer Prevention Coalition sent a letter to then Johnson & Johnson C.E.O. Ralph Larsen, urging him to substitute cornstarch for talcum powder products and to label its products with a warning on cancer risks.5 102. Upon information and belief, in or about 1996, the FDA requested that the condom industry stop dusting condoms with talc due to the health concerns that studies linked talc to ovarian cancer. Upon this request, all U.S. manufacturers discontinued the use of talc in its condom manufacturing process to reduce the potential health hazards to women.6 103. Upon information and belief, in or about 1990, the U.S. Food and Drug Administration (FDA) asked manufacturers to voluntarily stop putting talc on surgical gloves because mounting scientific evidence showed that it caused adhesions in surgical patients.' 104. Upon information and belief, in or about February 2006, the International Agency for Research on Cancer ([ARC), the specialized cancer agency of the World Health 'Petition Seeking a Cancer Warning on Cosmetic Talc Products, May 13, 2008 http://www.oreventcancer.com/publications/pdf/FINAL CitPetTalcOvCa may138.pdf. 6 "A Women's Campaign Against Talc on Condoms," Philly.com, htto://articles.philly.com/1996-01- 08/living/25652370 1 talc-condoms-ovarian-cancer. Id. 58 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 59 of 90 PageID: 1374 E lect ron ica lly F ile d - C ity of S t. L o u is - S e p tem b er 2 9 , 2 0 1 6 - 0 9 :5 9 P M Organization, published a paper whereby they classified perineal use of talc-based body powder as a "Group 2B" human carcinogen.8 IARC, which is universally accepted as the international authority on cancer issues, concluded that studies from around the world consistently found an increased risk of ovarian cancer in women who used talc in perineal areas. IARC determined that between 16-52% of women worldwide used talc to dust their perineum and found an increased risk of ovarian cancer in women talc users ranging from 30-60%. 105. Upon information and belief, in or about 2006, the Canadian government, under The Hazardous Products Act and associated Controlled Products Regulations, classified talc as a "D2A," "very toxic," "cancer-causing" substance under its Workplace Hazardous Materials Information System (WHMIS). Asbestos is also classified as "D2A." 106. Upon information and belief, in or about 2006, Defendant Imerys Talc began placing a warning on the MSDS it provided to the Johnson & Johnson Defendants regarding the talc it sold to them for use in the PRODUCTS. The MSDSs not only provided the warning information about the IARC classification but also included warning information regarding "States Rights to Know" and warning information about the Canadian Government's D2A classification of talc. 107. In 2008, the Cancer Prevention Coalition submitted a "Petition Seeking a Cancer Warning on Cosmetic Talc Products" to the FDA. The petition requested that the FDA immediately require cosmetic talcum powder products to bear labels with a prominent warning g IARC, "Perineal use of talc-based body powder (Group 2B)," available at http://monographs.iarc.fr/ENG/Monographs/PDFs/93-talc.odf. 59 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 60 of 90 PageID: 1375 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M that frequent talc application in the female genital area is responsible for major risks of ovarian cancer.9 108. In 2013, Cancer Prevention Research published a study that showed that women who used talcum powder in their groin area had a 20 to 30 percent greater risk of developing ovarian cancer than women who did not use talc products in that area.10 109. Presently, the National Cancer Institutell and the American Cancer Society12 list genital talc use as a "risk factor" for ovarian cancer. 110. The Gilda Radner Familial Ovarian Cancer Registry, Roswell Park Center Institute, and the Department of Gynecologic Oncology University of Vermont publish a pamphlet entitled, "Myths & Facts about ovarian cancer: What you need to know." In .this pamphlet, under "known" risk factors for ovarian cancer, it lists: "Use of Talc (Baby Powder) in the Genital Area."I3 111. The Defendants had a duty to know and warn about the hazards associated with the use of the PRODUCTS. 112. The Defendants failed to inform its customers and end users of the PRODUCTS of a known catastrophic health hazard associated with the use of its PRODUCTS. 9 Cancer Prevention Coalition "Petition Seeking a Cancer Warning on Cosmetic Talc Products" submitted to the FDA on May 13, 2008, http://www.organicconsumers.orWarticles/article 12517.cfm I° "Genital powder use and risk of ovarian cancer: a pooled analysis of 8,525 cases and 9,859 controls," Cancer Prevention Research, June 2013, http://cancerpreventionresearch.aacrjournals.org/content/early/2013/06/12/1940- 6207.CAPR-13-0037.short. II National Cancer Institute, Ovarian Cancer Prevention, http://www.cancer.govkancertopics/pdcyprevention/ovarian/PatientLpage3 12 American Cancer Society, Risk Factors for Ovarian Cancer, hftp://www.cancer.orWcancer/ovariancancer/detailedguide/ovarian-cancer-risk-factors 13 Myths and Facts About Ovarian Cancer, http://imaging.ubmmedica.com/cancernetwork/forpatients/pdfs/7_M&F%200varian%20Cancer.pdf. 60 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 61 of 90 PageID: 1376 113. In addition, the Defendants procured and disseminated false, misleading, and biased information regarding the safety of the PRODUCTS to the public and used influence over governmental and regulatory bodies regarding talc. 114. As a direct and proximate result of the Defendants' calculation and reprehensible conduct, Plaintiffs were injured and suffered damages, namely ovarian cancer, which required surgeries and treatments. FEDERAL STANDARDS AND REQUIREMENTS 115. Plaintiffs incorporate by reference all other paragraphs of this Petition as if fully set forth herein. 116. At all relevant times, Defendants had the obligation to comply with federal standards and regulations in the manufacture, design, marketing, branding, labeling, distribution, and sale of the PRODUCTS. 117. Defendants, each individually, in solido, and/or jointly, violated the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §301, et seq. 118. Defendants have or may have failed to comply with federal standards and requirements governing the manufacture, design, marketing, branding, and sale of the PRODUCTS including, but not limited to, the following violations of sections and subsections of the United States Code and the Code of Federal Regulations: a. The PRODUCTS are adulterated in violation of 21 U.S.C. § 361 because, among other things, they contain a poisonous or deleterious substance which may render them injurious to users under the conditions of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual. b. The PRODUCTS are misbranded in violation of 21 U.S.C. § 362 because, among other things, their labeling is false or misleading. 61 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 62 of 90 PageID: 1377 E lectronically Filed - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M c. The PRODUCTS are misbranded in violation 21 U.S.C. § 362 because words, statements, or other information required by or under authority of 21 U.S.C. § 362 are not prominently placed thereon with such conspicuousness and in such terms as to render them likely to be read and understood by the ordinary individual under customary conditions of purchase and use. d. The PRODUCTS are misbranded in violation of 21 C.F.R. § 701.1 because they contain false or misleading representations that they are safe for daily application to all parts of the female body. e. The PRODUCTS do not bear a warning statement, in violation of 21 C.F.R. § 740.1, to prevent a health hazard that may be associated with the PRODUCTS, namely that the PRODUCTS may cause ovarian cancer or a heightened risk of ovarian cancer when applied to the perineal area. f. The PRODUCTS do not prominently and conspicuously bear a warning statement, in violation of 21 C.F.R. § 740.2, as to the risk of ovarian cancer caused by the use of the PRODUCTS when applied to the perineal area, in such terms and design that it is likely to be read and understood by the ordinary individual under customary conditions of purchase and use. g. The PRODUCTS, in violation of 21 C.F.R. § 740.10, do not conspicuously state on their principal display panel that the safety of the PRODUCTS have not been determined and/or that the safety of the PRODUCTS' principal ingredients have not been determined. COUNT ONE - VIOLATION OF MISSOURI MERCHANDIZING PRACTICE ACT. & 407.020 et sea. (Johnson & Johnson Defendants) 119. Plaintiffs incorporate by reference all other paragraphs of this Petition as if fully set forth herein. 120. At all relevant times, the Johnson & Johnson Defendants knew or should have known of the unreasonably dangerous and carcinogenic nature of talc, especially when applied in a women's perineal region. 121. At all relevant times, the Johnson & Johnson Defendants, through their labeling, advertisements, public representations and marketing of the PRODUCTS, intentionally used 62 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 63 of 90 PageID: 1378 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M deception, fraud, false pretenses, false promises, misrepresentations and unfair trade practices in order to mislead consumers that the PRODUCTS were safe for use in the female perineal area. 122. The labeling and advertisements for the PRODUCTS include, but are not limited to, the following statements: "For you, use every day to help feel soft, fresh, and comfortable;"14 "A sprinkle a day keeps the odor away;" "Your body perspires in more places than just under your arms;" "Use SHOWER to SHOWER to feel dry, fresh, and comfortable throughout the day;" and "SHOWER to SHOWER can be used all over your body."15 123. In particular, the Johnson & Johnson Defendants advertised the product SHOWER to SHOWER to be applied "all over," and suggested that women use it to "Soothe Your Skin: Sprinkle on problem areas to soothe skin that has been irritated from friction. Apply after a bikini wax to help reduce irritation and discomfort." 124. At all relevant times, the Johnson & Johnson Defendants also engaged in the concealment, suppression and/or omission of material facts in connection with the sale and/or advertisement of the PRODUCTS in trade or commerce. In particular, the Johnson & Johnson Defendants failed to disclose to the public that the PRODUCTS were unsafe and posed serious health hazards, particularly when used in the perineal areas of women. The first study that suggested an association between talc and ovarian cancer was conducted in 1971, and studies confirming this association have been and continue to be conducted. The Johnson & Johnson Defendants were aware of the hazardous risks posed by the PRODUCTS and yet failed to inform the public of these risks through their advertisements, labeling, or other means available to them. The Johnson & Johnson Defendants' failure to state material facts about their PRODUCTS constitutes a violation of V.A.M.S. § 407.020. 14 Retailer Wal-Mart lists the labels for Johnson's Baby Powder, http://www.walmart.com/ip/Johnson-s-Baby- Powder-22-07/10294007. 15 Johnson & Johnson Shower to Shower website, http://showertoshower.com/the-power-of-powder. 63 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 64 of 90 PageID: 1379 E lectronically F iled - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M 125. At all relevant times, Plaintiffs were deceived by Defendants' intentional misrepresentations and omissions, including by the orchestrated claims made on or in television commercials, advertising materials, websites, and on product labels and packaging regarding the usage and safety of the PRODUCTS. 126. At all relevant times, Plaintiffs acted in reasonable reliance upon the Johnson & Johnson Defendants' unlawful trade practices, and had the Johnson & Johnson Defendants not engaged in the deceptive conduct described herein, Plaintiffs would not have purchased and/or received the PRODUCTS. 127. As a direct and proximate result of Johnson & Johnson Defendants' unlawful trade practices, Plaintiffs developed ovarian cancer and have been injured catastrophically and have been caused severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care, comfort and economic damages. WHEREFORE, Plaintiffs pray for judgment against Johnson & Johnson Defendants in a fair and reasonable sum in excess of $25,000.00 together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT TWO - STRICT LIABILITY FOR FAILURE TO WARN . (Imervs Talc) 128. Plaintiffs incorporate by reference all other paragraphs of this Petition as if fully set forth herein. 129. At all relevant times, Imerys Talc mined and sold talc to the Johnson & Johnson Defendants with full knowledge that the Johnson & Johnson Defendants were then packaging the talc and selling to consumers as the PRODUCTS and consumers of the PRODUCTS were using it to powder their perineal regions. 64 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 65 of 90 PageID: 1380 E lectronically Filed - C ity of S t. Louis - S eptem ber 29 , 20 1 6 - 09:59 P M 130. At all relevant times, by mining talc and supplying that talc to the Johnson & Johnson Defendants for use in the PRODUCTS, Imerys Talc was knowingly an integral part of the overall manufacture, design, and production of the PRODUCTS and their introduction into the stream of interstate commerce. 131. At all relevant times, Imerys Talc knew or should have known of the unreasonably dangerous and carcinogenic nature of the talc it was selling to the Johnson & Johnson Defendants, especially when applied to a woman's perineal regions, and it knew or should have known that Johnson & Johnson was not warning its consumers of this danger. 132. At all relevant times, Imerys Talc knew or should have known that the use of the PRODUCTS significantly increase the risk of ovarian cancer in women based upon scientific knowledge dating back until at least 1971. 133. At all relevant times,. the PRODUCTS were defective and unreasonably dangerous when used in a reasonably foreseeable manner because, despite Imerys Talc's knowledge that the PRODUCTS were carcinogenic and could lead to an increased risk of ovarian cancer, Imerys Talc failed to provide adequate warning and/or instruction to consumers, including Plaintiff, regarding the increased risk of ovarian cancer associated with the use of the PRODUCTS when applied to the perineal area. 134. Had Plaintiffs received warning or instruction regarding the increased risk of ovarian cancer associated with the PRODUCTS when applied to the perineal area, Plaintiffs would not have used the PRODUCTS in this manner. 135. Due to the absence of any warning or instruction by the Defendants as to the significant health and safety risks posed by the PRODUCTS as described herein, Plaintiffs were 65 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 66 of 90 PageID: 1381 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M unaware that the PRODUCTS created an increased risk of ovarian cancer, as this danger was not known to the general public. 136. As a direct and proximate result of Imerys Talc's failure to warn Plaintiffs of the increased risk of ovarian cancer associated with the PRODUCTS when applied to the perineal area, despite their actual knowledge of this material fact, Plaintiffs developed ovarian cancer and have been injured catastrophically and have been caused severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care, comfort and economic damages. WHEREFORE, Plaintiffs pray for judgment against Defendant Imerys Talc in a fair and reasonable sum in excess of $25,000.00 together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT THREE - STRICT LIABILITY FOR FAILURE TO WARN (Johnson & Johnson Defendants) 137. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 138. At all relevant times, the Johnson & Johnson Defendants were engaged in the business of manufacturing, marketing, testing, promoting, selling and/or distributing, and otherwise introducing into the stream of interstate commerce, the PRODUCTS. 139. At all relevant times, the Johnson & Johnson Defendants knew or should have known that the use of the PRODUCTS in the female perineal area significantly increased the risk of ovarian cancer in women based upon scientific knowledge dating back until at least 1971. 140. At all relevant times, the PRODUCTS, manufactured and supplied by the Johnson & Johnson Defendants, were defective and unreasonably dangerous because, despite the Johnson & Johnson Defendants' knowledge that its PRODUCTS were carcinogenic and could lead to an increased risk of ovarian cancer when applied to the female perineal area, a reasonably 66 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 67 of 90 PageID: 1382 E lectronically Filed - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 PM foreseeable use of the PRODUCTS, the Johnson & Johnson Defendants failed to provide adequate warning or instruction to consumers, including Plaintiffs, regarding the increased risk of ovarian cancer when the PRODUCTS are applied to the female perineal area. 141. At all relevant times, Plaintiffs used the PRODUCTS to powder their perineal areas, a use that was reasonably foreseeable and for which the PRODUCTS were supplied. 142. Had Plaintiffs received warning and/or instruction from the Johnson & Johnson Defendants regarding the increased risk of ovarian cancer associated with the PRODUCTS when applied to the perineal area, Plaintiffs would not have used the PRODUCTS in this manner. 143. Due to the absence of any warning or instruction by the Johnson & Johnson. Defendants as to the significant health and safety risks posed by the PRODUCTS as described herein, Plaintiffs were unaware that the PRODUCTS created an increased risk of ovarian cancer, as this danger was not known to the general public. 144. As a direct and proximate result of Johnson & Johnson Defenadnts' failure to warn Plaintiffs of the increased risk of ovarian cancer associated with the PRODUCTS when applied to the perineal area, despite their actual knowledge of this material fact, Plaintiffs developed ovarian cancer and have been injured catastrophically and have been caused severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care, comfort and economic damages. WHEREFORE, Plaintiffs pray for judgment against the Johnson & Johnson Defendants in a fair and reasonable sum in excess of $25,000.00 together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT FOUR - STRICT LIABILITY FOR DEFECTIVE MANUFACTURE AND DESIGN amervs Talc) 67 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 68 of 90 PageID: 1383 145. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 146. At all relevant times, Defendant Imerys Talc was engaged in the business of mining and distributing talcum to Johnson & Johnson Defendants for use in the PRODUCTS, and they were knowingly an integral part of the overall manufacture, design, and production of the PRODUCTS and their introduction into the stream of interstate commerce. 147. At all relevant times, the PRODUCTS were expected to and did reach Plaintiffs without a substantial change in their condition. 148. At all relevant times, the PRODUCTS were defectively and improperly manufactured and designed by Imerys Talc in that, when Imerys Talc supplied its talc product to Johnson & Johnson with full knowledge that Johnson & Johnson would use its talc in formulating the PRODUCTS and that the talc would be the primary ingredient in the PRODUCTS, the foreseeable risks of the PRODUCTS far outweighed the benefits associated with their design and formulation. 149. At all relevant times, the PRODUCTS were defectively manufactured and designed by Imerys Talc in that their design and formulation is more dangerous than an ordinary consumer would expect when used in an intended and reasonably foreseeable manner. 150. At all relevant times, the PRODUCTS created significant risks to the health and safety of consumers that far outweigh the risks posed by other products on the market used for the same therapeutic purpose. 151. As a direct and proximate result of the defective design and manufacture of the PRODUCTS, Plaintiffs developed ovarian cancer and have been injured catastrophically and 68 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 69 of 90 PageID: 1384 E lectroni cally File d - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M have been caused severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care, comfort and economic damages. WHEREFORE, Plaintiffs pray for judgment against Defendant Imerys Talc in a fair and reasonable sum in excess of $25,000.00 together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT FIVE - STRICT LIABILITY FOR DEFECTIVE MANUFACTURE AND DESIGN (Johnson & Johnson Defendants) 152. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 153. At all relevant times, the Johnson & Johnson Defendants were engaged in the business of manufacturing, formulating, creating, designing, testing, labeling, packaging, supplying, marketing, promoting, selling, advertising, and otherwise introducing the PRODUCTS into the stream of interstate commerce, which they sold and distributed throughout the United States. 154. At all relevant times, the PRODUCTS were expected to and did reach Plaintiff without a substantial change in condition. 155. At all relevant times, the PRODUCTS were defectively and improperly manufactured and designed by the Johnson & Johnson Defendants in that, when the PRODUCTS left the hands of the Johnson & Johnson Defendants, the foreseeable risks of the PRODUCTS far outweighed the benefits associated with their design and formulation. 156. At all relevant times, the PRODUCTS were defectively manufactured and designed by the Johnson & Johnson Defendants in that their design and formulation is more 69 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 70 of 90 PageID: 1385 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 201 6 - 09:59 P M dangerous than an ordinary consumer would expect when used in an intended and reasonably foreseeable manner. 157. At all relevant times, the PRODUCTS created significant risks to the health and safety of consumers that far outweigh the risks posed by other products on the market used for the same therapeutic purpose. 158. At all relevant times, a reasonable and safer alternative design existed, which could have feasibly been employed by the Johnson & Johnson Defendants to manufacture a product with the same therapeutic purpose as the PRODUCTS. Despite knowledge of this reasonable and safer alternative design, the Johnson & Johnson Defendants failed to alter the PRODUCTS' design and formulation. The magnitude of the danger created by the PRODUCTS far outweighs the costs associated with using an alternative, safer design. 159. As a direct and proximate result of the defective design and manufacture of the PRODUCTS, Plaintiffs developed ovarian cancer and have been injured catastrophically and have been caused severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care, comfort and economic damages. WHEREFORE, Plaintiffs pray for judgment against Johnson & Johnson Defendants in a fair and reasonable sum in excess of $25,000.00 together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT SIX - NEGLIGENCE (Imervs Talc) 160. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 161. At all relevant times, Imerys Talc had a duty to exercise reasonable care to consumers, including Plaintiffs herein, in the design, development, manufacture, testing, 70 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 71 of 90 PageID: 1386 E lectronically File d - C ity of S t. Louis - S e ptem ber 29, 201 6 - 09:59 P M inspection, packaging, promotion, marketing, distribution, labeling and/or sale of the PRODUCTS. 162. At all relevant times, Imerys Talc mined and sold talc to the Johnson & Johnson Defendants, which it knew was then being packaged and sold to consumers as the PRODUCTS by the Johnson and Johnson Defendants. Further, Imerys Talc knew that consumers of the PRODUCTS were using it to powder their perineal regions. 163. At all relevant times, Imerys Talc knew or should have known that the use of the PRODUCTS in the perineal area significantly increases the risk of ovarian cancer based upon scientific knowledge dating back to the 1971. 164. At all relevant times, Imerys Talc knew that Johnson & Johnson Defendants were not providing warnings to consumers of the PRODUCTS of the risk of ovarian cancer posed by talc contained therein. 165. At all relevant times, Imerys Talc was negligent in providing talc to the Johnson & Johnson Defendants. Imerys Talc possessed information on the carcinogenic properties of talc, including its risk of causing ovarian cancer. Imerys Talc was negligent because it knew that the talc they provided to Johnson & Johnson Defendants would be used in the PRODUCTS, but they did not adequately take steps to ensure that ultimate consumers of the PRODUCTS, including Plaintiffs, received the information that Imerys Talc possessed on the carcinogenic properties of talc. 166. As a direct and proximate result of Imerys Talc's negligence, Plaintiffs developed ovarian cancer and have been injured catastrophically and have been caused severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care, comfort and economic damages. 71 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 72 of 90 PageID: 1387 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M WHEREFORE, Plaintiffs pray for judgment against Imerys Talc in a fair and reasonable sum in excess of $25,000.00, together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT SEVEN -NEGLIGENCE (Johnson & Johnson Defendants) 167. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 168. At all relevant times, the Johnson & Johnson Defendants breached their duty to Plaintiffs and were otherwise negligent in marketing, designing, manufacturing, producing, supplying, inspecting, testing, selling and/or distributing the PRODUCTS in one or more of the following respects: a. In failing to warn Plaintiffs of the hazards associated with the use of the PRODUCTS; b. In failing to properly test their products to determine adequacy and effectiveness or safety measures, if any, prior to releasing the PRODUCTS for consumer use; c. In failing to properly test the PRODUCTS to determine the increased risk of ovarian cancer during the normal and/or intended use of the PRODUCTS; d. In failing to inform ultimate users, such as Plaintiffs, as to the safe and proper methods of handling and using the PRODUCTS; e. In failing to remove the PRODUCTS from the market when the Defendants knew or should have known the PRODUCTS were defective; f. In failing to instruct the . ultimate users, such as Plaintiffs, as to the methods for reducing the type of exposure to the PRODUCTS which caused increased risk of ovarian cancer; • g. In failing to inform the public in general and the Plaintiffs in particular of the known dangers of using the PRODUCTS for dusting the perineum; 72 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 73 of 90 PageID: 1388 E lectroni cally File d - C ity of S i L ou is - S ep tem b er 29 , 20 16 - 0 9 :59 P M h. In failing to advise users how to prevent or reduce exposure that caused an increased risk for ovarian cancer; i. In marketing and labeling the PRODUCTS as safe for all uses despite knowledge to the contrary; j. In failing to act like a reasonably prudent company under similar circumstances; k. • In failing to use a safer alternative to talc in the PRODUCTS, such as cornstarch. Each and all of these acts and omissions, taken singularly or in combination, were a proximate cause of the injuries and damages sustained by Plaintiffs. 169. At all relevant times, the Johnson & Johnson Defendants knew or should have known that the PRODUCTS were unreasonably dangerous and defective when put to their reasonably anticipated use. 170. As a direct and proximate result of the Johnson & Johnson Defendants' negligence, Plaintiffs purchased and used the PRODUCTS that directly and proximately caused each Plaintiff to develop ovarian cancer. As a direct and proximate result, Plaintiffs were caused to incur medical bills, lost wages, and conscious pain and suffering. WHEREFORE, Plaintiffs pray for judgment against the Johnson & Johnson Defendants in a fair and reasonable sum in excess of $25,000.00, together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT EIGHT - BREACH OF EXPRESS WARRANTY (Johnson & Johnson Defendants) 171. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 73 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 74 of 90 PageID: 1389 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 172. At all relevant times, the Johnson & Johnson Defendants knew or should have known that the PRODUCTS were unreasonably dangerous and defective when put to their reasonably anticipated use. 173. At all relevant times, the Johnson & Johnson Defendants expressly warranted, through direct-to-consumer marketing, advertisements, and labels, that the PRODUCTS were safe and effective for reasonably anticipated uses, including use by women in their perineal area. 174. At all relevant times, the PRODUCTS did not conform to these express representations because they cause serious injury, including ovarian cancer, when used by women in the perineal area. 175. As a direct and proximate result of the Defendants' breach of warranty, Plaintiffs purchased and used the PRODUCTS that directly and proximately caused each Plaintiff to develop ovarian cancer. Plaintiffs were caused to incur medical bills, lost wages, and conscious pain and suffering. WHEREFORE, Plaintiffs pray for judgment against the Johnson & Johnson Defendants in a fair and reasonable sum in excess of $25,000.00, together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT NINE- BREACH OF IMPLIED WARRANTIES (Johnson & Johnson Defendants) 176. Plaintiffs incorporate by reference each of the preceding paragraphs as if fully set forth herein. 177. At the time the Defendants manufactured, marketed, labeled, promoted, distributed and/or sold the PRODUCTS, the Johnson & Johnson Defendants knew of the uses for which the PRODUCTS were intended, including use by women in the perineal area. With this 74 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 75 of 90 PageID: 1390 E lectronically File d - C ity of S t. Louis - Septem b er 29, 2 0 1 6 - 09:59 P M knowledge, they impliedly warranted the PRODUCTS to be of merchantable quality and safe for such use. 178. Defendants breached their implied warranties of the PRODUCTS sold to Plaintiffs because they were not fit for their common, ordinary and intended uses, including use by women in the perineal area. 179. As a direct and proximate result of the Johnson & Johnson Defendants' breach of implied warranties, Plaintiffs purchased and used the PRODUCTS that directly and proximately caused each Plaintiff to develop ovarian cancer. As a result, Plaintiffs were caused to incur medical bills, lost wages, and conscious pain and suffering. WHEREFORE,. Plaintiffs pray for judgment against the Johnson & Johnson Defendants in a fair and reasonable sum in excess of $25,000.00, together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT TEN - CIVIL CONSPIRACY (All Defendants) 180. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 181. Defendants and/or their predecessors-in-interest knowingly agreed, contrived, combined, confederated and conspired among themselves to cause Plaintiffs' injuries, diseases, and/or illnesses by exposing the Plaintiffs to harmful and dangerous PRODUCTS. Defendants further knowingly agreed, contrived, confederated and conspired to deprive the Plaintiffs of the opportunity of informed free choice as to whether to use the PRODUCTS or to expose themselves to the stated dangers. Defendants committed the wrongs as described herein by willfully misrepresenting and suppressing the truth as to the risks and dangers associated with the use of and exposure to the PRODUCTS. 75 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 76 of 90 PageID: 1391 acts: E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M 182. In furtherance of said conspiracies, Defendants performed the following overt a. For many decades, Defendants, individually, jointly, and in conspiracy with each other, have been in possession of medical and scientific data, literature and test reports that clearly indicated that use of their by women resulting from ordinary and foreseeable use of the PRODUCTS were unreasonably dangerous, hazardous, deleterious to human health, carcinogenic, and potentially deadly; b. Despite the medical and scientific data, literature, and test reports possessed by and available to Defendants, Defendants individually, jointly, and in conspiracy with each other, fraudulently, willfully and maliciously: i. Withheld, concealed and suppressed said medical information regarding the increased risk of ovarian cancer from Plaintiffs, as described above; In addition, on July 27, 2005, Defendants, as part of the TIPTF, corresponded about and agreed to edit and delete portions of scientific papers being submitted on their behalf to the United States Toxicology Program in an attempt to prevent talc from being classified as a carcinogen; ii. Instituted a "defense strategy" through the TIPTF to defend talc at all costs. In furtherance of this defense strategy, Defendants, through the TIPTF, used their influence over the National Toxicology Program ("NTP') Subcommittee and the threat of litigation against the NTP to prevent the NTP from classifying talc as a carcinogen on its 10th Report on Carcinogens ("RoC"); iii. Caused to be released, published and disseminated medical and scientific data, literature, and test reports containing information and statements regarding the risks of ovarian cancer which Defendants knew were incorrect, incomplete, outdated, and misleading. Specifically, Defendants, through the TIPTF, collectively agreed to release false information to the public regarding the safety of talc on July 1, 1992; July 8, 1992; and November 17, 1994. In a letter dated September 17, 1997, the Defendants were criticized by their own toxicologist consultant for releasing this false information to the public, yet nothing was done by the Defendants to correct or redact this public release of knowingly false information. c. By these false and fraudulent representations, omissions, and concealments, Defendants intended to induce and did induce the Plaintiffs to rely upon these false and fraudulent representations, omissions and 76 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 77 of 90 PageID: 1392 concealments, and to continue to expose themselves to the dangers • inherent in the use of and exposure to the PRODUCTS. 183. Plaintiffs reasonably and in good faith relied upon the fraudulent representations, omissions, and concealments made by Defendants regarding the nature of the PRODUCTS. 184. As a - direct, foreseeable and proximate result of the Defendants' conspiracy, Plaintiffs purchased and used the PRODUCTS in the perineal areas, which directly and proximately caused each Plaintiff to develop ovarian cancer. Plaintiffs were caused to incur medical bills, lost wages, and conscious pain and suffering. WHEREFORE, Plaintiffs pray for judgment against all Defendants, jointly and severely, in a fair and reasonable sum in excess of $25,000.00, together with costs expended herein and such further and other relief as the Court deems just and appropriate. . COUNT ELEVEN - CONCERT OF ACTION (All Defendants) 185. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 186. At all relevant times, Imerys Talc and the Johnson & Johnson Defendants knew that the PRODUCTS should contain warnings about the risk of ovarian cancer when women used the PRODUCTS to powder the perineal region, but they purposefully suppressed this information and omitted warnings from the PRODUCTS. They did so to maintain sales and profits of the Johnson & Johnson Defendants and Imerys Talc. 187. As a direct, foreseeable and proximate result of the Defendants' concert of action, Plaintiffs purchased and used the PRODUCTS. in their perineal areas. As a direct and proximate result of such use, each Plaintiff developed ovarian cancer, and Plaintiffs were caused to incur medical bills, lost Wages, and conscious pain and suffering. 77 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 78 of 90 PageID: 1393 E lectronically F ile d - C ity of S i L ouis - S eptem ber 29, 2 0 1 6 - 09:59 PM WHEREFORE, Plaintiffs pray for judgment against all Defendants, jointly and severely, in a fair and reasonable sum in excess of $25,000.00, together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT TWELVE - FRAUD (Johnson & Johnson Defendants) 188. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 189. At all relevant times, the Johnson & Johnson Defendants intentionally, willfully, and/or recklessly, with the intent to deceive, misrepresented and/or concealed material facts to consumers and users, including Plaintiffs. 190. At all relevant times, the Johnson & Johnson Defendants misrepresented and/or concealed material facts concerning the PRODUCTS to consumers, including the Plaintiffs, with knowledge of the falsity of their misrepresentations. 191. At all relevant times, upon information and belief, the misrepresentations and concealments concerning the PRODUCTS made by the Johnson & Johnson Defendants include, but are not limited to the following: a: The Johnson & Johnson Defendants falsely labeled and advertised the PRODUCTS in the following ways, among others: "For you, use every day to help feel soft, fresh, and comfortable," "a sprinkle a day keeps the odor away," "your body perspires in more places than just under your arms," "Use SHOWER to SHOWER to feel dry, fresh, and comfortable throughout the day," and "SHOWER to SHOWER can be used all over your body." b. The Johnson & Johnson Defendants falsely advertised the PRODUCT SHOWER to SHOWER to be applied "all over," and in particular, urges women to use it to "Soothe Your Skin: Sprinkle on problem areas to soothe skin that has been irritated from friction. Apply after a bikini wax to help reduce irritation and discomfort." 78 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 79 of 90 PageID: 1394 E lectronically Filed - C ity of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M c. The Johnson & Johnson Defendants, through the advertisements described above, knowingly misrepresented to Plaintiff and the public that the PRODUCTS were safe for use all over the body, including the perineal areas of women. d. The Johnson & Johnson Defendants intentionally failed to disclose that talc and the associated PRODUCTS, when used in the perineal area, increase the risk of ovarian cancer. e. The Johnson & Johnson Defendants intentionally failed to include adequate warnings with the PRODUCTS regarding the potential and actual risks of using the PRODUCTS in the perineal area on women and the nature, scope, severity, and duration of any serious injuries resulting therefrom.16 f. Despite knowing about the carcinogenic nature of talc and its likelihood to increase the risk of ovarian cancer in women, the Johnson & Johnson Defendants falsely marketed, advertised, labeled and sold the PRODUCTS as safe for public consumption and usage, including for use by women to powder their perineal areas. 192. At all relevant times, the Johnson & Johnson Defendants actively, knowingly, and intentionally concealed and misrepresented these material facts to the consuming public with the intent to deceive the public and Plaintiffs, and with the intent that the consumers would purchase and use the PRODUCTS in the female perineal area. 193. At all relevant times, the consuming public, including Plaintiffs, would not otherwise have purchased the PRODUCTS and/or applied the PRODUCTS in the perineal area if they had been informed of the risks associated with the use of the PRODUCTS in the perineal area. 194. At all relevant times, Plaintiffs relied on the Johnson & Johnson Defendants' misrepresentations concerning the safety of the PRODUCTS when purchasing the PRODUCTS and using them in her perineal area, and her reliance was reasonable and justified. 16 Household Products Database, Label for Johnson's Baby Powder, Original, http://householdproducts.nlm.nih.goviegi-bin/household/brands?tbl=brands&id=10001040 79 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 80 of 90 PageID: 1395 E lectronically File d - City of S t. Louis - S eptem ber 29, 2 0 1 6 - 09:59 P M 195. As a direct, foreseeable and proximate result of the Johnson & Johnson Defendants' fraudulent conduct, Plaintiffs purchased and used the PRODUCTS in their perineal areas. As a direct and proximate result of such use, each Plaintiff developed ovarian cancer, and Plaintiffs were caused to incur medical bills, lost wages, and conscious pain and suffering. WHEREFORE, Plaintiffs pray for judgment against all Defendants, jointly and severely, in a fair and reasonable sum in excess of $25,000.00, together with costs expended herein and such further and other relief as the Court deems just and appropriate. COUNT THIRTEEN - NEGLIGENT MISREPRESENTATION (All Defendants) 196. As a direct, foreseeable and proximate result of the Johnson & Johnson Defendants' fraudulent conduct, Plaintiffs purchased and used the PRODUCTS in their perineal areas. As a direct and proximate result of such use, each Plaintiff developed ovarian cancer, and Plaintiffs were caused to incur medical bills, lost wages, and conscious pain and suffering. 197. Defendants had a duty to accurately and truthfully represent to the medical and healthcare community, Plaintiffs and the public that the PRODUCTS had been tested and found to be safe and effective for use in the perineal area. However, the representations made by Defendants, in fact, were false. 198. Defendants failed to exercise ordinary care in the representations concerning the PRODUCTS while they were involved in their manufacture, sale, testing, quality assurance, quality control, and distribution in interstate commerce, because Defendants negligently misrepresented the PRODUCTS' high risk of unreasonable, dangerous, adverse side effects. 199. Defendants breached their duty in representing that the PRODUCTS were safe for use in the perineal areas of women. 80 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 81 of 90 PageID: 1396 c- a 200. At all relevant times, upon information and belief, the misrepresentations, O. 0 omissions and concealments concerning the PRODUCTS made by the Defendants include, but 0 cn are not limited to the following: r- 0 a. The Johnson & Johnson Defendants labeled and advertised the PRODUCTS in the following ways, among others: "For you, use every day to help feel soft, fresh, and comfortable;" "A sprinkle a day keeps the 72. odor away;" "Your body perspires in more places than just under your cci arms;" "Use SHOWER to SHOWER to feel dry, fresh, and comfortable throughout the day; and "SHOWER to SHOWER can be used all over • your body." 1•3 b: The Johnson & Johnson Defendants advertised the product SHOWER to o cc SHOWER to be applied "all over," and in particular, urged women to use it to "Soothe Your Skin: Sprinkle on problem areas to soothe skin that has -o been irritated from friction. Apply after a bikini wax to help reduce irritation and discomfort." c. Defendants, through the advertisements described above, among others, misrepresented to consumers, including the Plaintiffs, that the PRODUCTS were safe for use all over the body, including the female perineal area. d. Despite actual knowledge of the health risks of the PRODUCTS, the Defendants failed to disclose to the consumers and the Plaintiffs, through adequate warnings, representations, labeling, or otherwise, that the PRODUCTS were inherently dangerous and carcinogenic in nature, which poses serious health risks to consumers. e. Despite actual knowledge that the use of the PRODUCTS in the perineal area created a significantly increased risk of ovarian cancer, the Defendants failed to disclose to consumers and the Plaintiff, through adequate warnings, representations, labeling, or otherwise, that material fact. f. Despite knowing about the carcinogenic nature of talc and its likelihood to increase the risk of ovarian cancer in women, the Johnson & Johnson Defendants falsely marketed, advertised, labeled and sold the PRODUCTS as safe for public consumption and usage, including for use by women to powder their perineal areas. 201. At all relevant times, Defendants failed to exercise reasonable care in ascertaining or sharing information regarding the safe use of PRODUCTS, failed to disclose facts indicating 81 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 82 of 90 PageID: 1397 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 2016 - 09:59 P M that the PRODUCTS were inherently dangerous and carcinogenic in nature, and otherwise failed to exercise reasonable care in communicating the information concerning the PRODUCTS to Plaintiff and/or concealed relevant facts that were known to them. 202. At all relevant times, Plaintiffs were not aware of the falsity of the foregoing misrepresentations, nor was she aware that material facts concerning talc and the PRODUCTS had been concealed or omitted. In reasonable reliance upon the Johnson & Johnson Defendants' misrepresentations and/or omissions, Plaintiffs were induced to and did purchase the PRODUCTS and did use the PRODUCTS on her perineal area. If the Defendants had disclosed true and accurate material facts concerning the risks of the use of the PRODUCTS, in particular the risk of developing ovarian cancer from using the PRODUCTS in the female perineal area, Plaintiffs would not have purchased and/or received the PRODUCTS and/or used the PRODUCTS in that manner. 203. Plaintiffs' reliance upon the Defendants' misrepresentations and omissions was justified and reasonable because, among other reasons, those misrepresentations and omissions were made by individuals and entities who were in a position to know the material facts concerning the PRODUCTS and the association between the PRODUCTS and the incidence of ovarian cancer, while Plaintiff was not in a position to know these material facts, and because the Johnson & Johnson Defendants failed to warn or otherwise provide notice to the consuming public as to the risks of the PRODUCTS, thereby inducing Plaintiff to use the PRODUCTS in lieu of safer alternatives and in ways that created unreasonably dangerous risks to her health. At all relevant times, the Defendants' corporate officers, directors, and/or managing agents knew of and ratified the acts of the Johnson & Johnson Defendants, as alleged herein. 82 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 83 of 90 PageID: 1398 E lectronically File d - City of S t. Louis - S eptem ber 29, 201 6 - 09:59 PM 204. As a direct and proximate result of Defendants' conduct, Plaintiffs have been injured and sustained severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care and comfort, and economic damages. WHEREFORE, Plaintiffs demand judgment against Defendants, individually, jointly, severally, and in the alternative, requests compensatory damages, punitive damages, together with interest, costs of suit, attorneys' fees, and such further relief as the Court deems equitable and just. COUNT FOURTEEN - WRONGFUL DEATH (All Defendants) 205. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 206. As a direct and proximate result of the acts and/or omissions of Defendants as set forth herein, the Decedents named in this action used the PRODUCTS in their perineal areas. Subsequent to such use, Decedents developed ovarian cancer, suffered substantial pain and suffering, both physical and emotional in nature, and subsequently died. 207. Plaintiffs, on behalf of themselves and all of the next of kin of Decedents, are entitled to recover damages as Decedents would have if they were living, as a result of acts and/or omissions of Defendants. 208. Plaintiffs, on behalf of themselves and all of Decedents' next of kin are also entitled to recover punitive damages and damages for substantial pain and suffering caused to Decedents from the acts and/or omissions of Defendants as fully set forth herein, including without limitations, punitive damages. 83 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 84 of 90 PageID: 1399 E lectronically F ile d - C ity of S t. Louis - S ep tem b e r 29, 201 6 - 09 :59 P M • 209. As a direct and proximate result of Defendants' conduct, Plaintiffs and Decedents have been injured and sustained severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care and comfort, and economic damages. WHEREFORE, Plaintiffs demand judgment against Defendants, individually, jointly, severally, and in the alternative, requests compensatory damages, punitive damages, together with interest, costs of suit, attorneys' fees, and such further relief as the Court deems equitable and just. COUNT FIFTEEN - PUNITIVE DAMAGES (All Defendants) 210. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 211. The Defendants have acted willfully, wantonly, maliciously, with an evil motive, and recklessly in one or more of the following ways: a. Defendants knew of the unreasonably high risk of ovarian cancer posed by the PRODUCTS before manufacturing, marketing, distributing and/or selling the PRODUCTS, yet purposefully proceeded with such action; b. Despite their knowledge of the high risk of ovarian cancer associated with the PRODUCTS, Defendants affirmatively minimized this risk through marketing and promotional efforts and product labeling; c. Through the actions outlined above, Defendants expressed a reckless indifference to the safety of users of the PRODUCTS, including Plaintiffs. Defendants knew of the dangers and risks of the PRODUCTS, yet they concealed and/or omitted this information from labels and warnings contained on the PRODUCTS in furtherance of their conspiracy and concerted action. These actions were outrageous because of Defendants' evil motive or a reckless indifference to the safety of users of the PRODUCTS. 84 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 85 of 90 PageID: 1400 E lectronically File d - City of S i L ouis - S eptem ber 29, 201 6 - 09:59 P M 212. As a direct and proximate result of the willful, wanton, malicious, evilly motivated and/or reckless conduct of the Defendants, the Plaintiffs have sustained damages as set forth above. WHEREFORE, Plaintiffs pray for a judgment for punitive damages against all _ - - _ - Defendants, jointly and severally, in a fair and reasonable amount sufficient to punish Defendants and deter them and others from engaging in similar conduct in the future, costs expended herein, and such further and other relief as the Court deems just and appropriate. COUNT SIXTEEN - DAMAGES (Against All Defendants) 213. Plaintiffs incorporate by reference every other paragraph of this Petition as if each were set forth fully and completely herein. 214. Defendants knew of the dangerous condition of the PRODUCTS, including that they posed a danger to their consumers, including Plaintiffs, but chose not to include any warnings or information regarding the dangerous condition of the PRODUCTS. 215. Defendants showed complete indifference to or conscious disregard of the safety of Plaintiffs by their conduct described herein. Defendants knew or should have known failure to include a warning for the PRODUCTS would result in women using the PRODUCTS in their perineal areas and subsequently developing ovarian cancer. 216. Plaintiffs are entitled to exemplary damages to punish Defendants and to deter Defendants and others in similar situations from like conduct. WHEREFORE, Plaintiffs pray for judgment against Defendants for exemplary damages for the aggravating circumstances of decedents' deaths, to punish Defendants, and to deter Defendants and others from like conduct, and such other and further relief as this Court deems just, proper, and equitable. 85 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 86 of 90 PageID: 1401 TOLLING STATUTE OF LIMITATIONS 217. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 218. Plaintiffs have suffered an illness that has a latency period and does not arise until many years after exposure. Plaintiffs' illnesses did not distinctly manifest themselves until they were made aware that their ovarian cancer could be caused by their use of the Defendants' products. Consequently, the discovery rule applies to these cases, and the statute of limitations has been tolled until the day that Plaintiffs knew or had reason to know that their ovarian cancer was linked to their use of the Defendants' products. 219. Furthermore, the running of any statute of limitations has been equitably tolled by reason of Defendants' fraudulent concealment and conduct. Through their affirmative misrepresentations and omissions, Defendants actively concealed from Plaintiffs the true risks associated with PRODUCTS. 220. As a result of Defendants' actions, Plaintiffs were unaware, and could not reasonably know or have learned through reasonable diligence, that Plaintiffs had been exposed to the risks alleged herein and that those risks were the direct and proximate result of Defendants' acts and omissions. 221. Furthermore, Defendants are estopped from relying on any statute of limitations because of their concealment of the truth regarding the safety of PRODUCTS. Defendants were under a duty to disclose the true character, quality and nature of PRODUCTS because this was non-public information over which they continue to have exclusive control. Defendants knew that this information was not available to Plaintiffs, their medical providers and/or their health facilities, yet they failed to disclose the information to the public. 86 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 87 of 90 PageID: 1402 E lectronically File d - City of S t. Louis - S eptem ber 29, 20 16 - 09:59 P M 222. Defendants had the ability to and did spend enormous amounts of money in furtherance of their purposes of marketing and promoting a profitable product, notwithstanding the known or reasonably knowable risks. Plaintiffs and medical professionals could not have afforded to and could not have possibly conducted studies to determine the nature, extent and identity of related health risks, and they were forced to rely on Defendants' representations. Respectfully submitted, ONDER, SHELTON, O'LEARY & PETERSON, LLC By: /s/ Stephanie Rados James G. Onder, #38049 William W. Blair, #58196 Stephanie L. Rados, #65117 110 E. Lockwood, 2'd Floor St. Louis, MO 63119 314-963-9000 telephone 314-963-1700 facsimile onder@onderlaw.com blair@onderlaw.com rados@onderlaw.com OF COUNSEL: R. Allen Smith, Jr. - MSB # 99984 THE SMITH LAW FIRM, PLLC 681 Towne Center Boulevard, Suite B Ridgeland, Mississippi 39157 Telephone: (601) 952-1422 Facsimile: (601) 952-1426 Timothy W. Porter - MSB # 9687 Patrick C. Malouf- MSB # 9702 PORTER & MALOUF, PA Post Office Box 12768 Jackson, Mississippi 39236-2768 Telephone: (601) 957-1173 Facsimile: (601) 957-7366 87 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 88 of 90 PageID: 1403 E lectronically File d - C ity of S t. Louis - S eptem ber 29, 20 16 - 09:59 PM Ted G. Meadows - ALB # MEA014 BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 218 Commerce Street Post Office Box 4160 Montgomery, Alabama 36103 Telephone: (334) 269-2343 -Facsimile: (334) 954-7555 Attorneys for Plaintiffs 88 Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 89 of 90 PageID: 1404 Captured Investigative Agency John Houseman, M.A. Adam Neil Dave Conder P.O. Box 503 Cl 06 05 SO ORDERED: IN THE CIRCUIT COURT OF CITY OF ST. LOUIS STATE OF MISSOURI JANICE BAHMLER, ET AL 111 OCT 0 6 2016 22" JUDICIAL aRcun CIRCUIT CLERK'S OFFICE BY DEPLITI. Plaintiffs, Cause No. 1622-CC10731 V. JOHNSON and JOHNSON, ET AL REQUEST FOR APPOINTMENT OF SPECIAL PROCESS SERVER COMES NOW Plaintiffs, by and through their undersigned attorneys, and request leave of Court to appoint the following to serve as special process server upon Defendant, Imery's Talc America, CT Corporation System, 120 South Central Avenue, St. Louis, MO 63105: Respectfully submitted, ONDER, SHELTON, O'LEARY & PETERSON, LLC By: /s/ Stephanie Rados James G. Onder, #38049 Michael J. Quillin, #61877 Stephanie L. Rados, #65117 110 E. Lockwood, 2nd Floor St. Louis, MO 63119 314-963-9000 telephone 314-963-1700 facsimile onder@onderlaw.com ClUillin@onderlaw.com rados(aonderlaw.com Case 3:17-cv-00800-FLW-LHG Document 46-3 Filed 03/09/17 Page 90 of 90 PageID: 1405 Case 3:17-cv-00800-FLW-LHG Document 46-4 Filed 03/09/17 Page 1 of 4 PageID: 1406 Case 3:17-cv-00800-FLW-LHG Document 46-4 Filed 03/09/17 Page 2 of 4 PageID: 1407 Case 3:17-cv-00800-FLW-LHG Document 46-4 Filed 03/09/17 Page 3 of 4 PageID: 1408 Case 3:17-cv-00800-FLW-LHG Document 46-4 Filed 03/09/17 Page 4 of 4 PageID: 1409 Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 1 of 46 PageID: 1410 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. In re: Zofran (Ondansetron) Products Liability Litigation, Slip Copy (2016) 2016 WL 2349105 2016 WL 2349105 Only the Westlaw citation is currently available. United States District Court, D. Massachusetts. In re: Zofran (Ondansetron) Products Liability Litigation. This Document Relates to: Kierra Simmons, et al., v. Glaxosmithkline LLC, 1:15-ev-13760-FDS. MDL No. 1:15-md-2657-FDS Signed 05/04/2016 MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' MOTION TO REMAND SAYLOR, United States District Judge *1 This case is one of many consolidated in a multi-district litigation proceeding arising out of claims that the use of the drug Zofran (ondansetron) by pregnant women caused birth defects. Plaintiffs Kierra Simmons, Tia Hancock, Joanna Tyler, and Dawn Barchiesi originally filed suit in Missouri state court against defendant GlaxoSmithKline, LLC ("GSK") alleging that their use of Zofran during pregnancy caused congenital heart defects in their children. GSK removed the action to the United States District Court for the Eastern District of Missouri and moved to dismiss the claims of three of the plaintiffs for lack of personal jurisdiction. Plaintiffs moved to remand the case for lack of subject-matter jurisdiction due to a lack of complete diversity of citizenship among the parties. The Missouri state court stayed the case pending its transfer to this district by the Judicial Panel for Multidistrict Litigation for consolidation pursuant to 28 U.S.C. § 1407. Plaintiffs have now renewed their motion to remand. GSK opposes remand on the ground that the Court should first decide the question of personal jurisdiction raised by its motion to dismiss before deciding the question of subject-matter jurisdiction. In the alternative, GSK contends that complete diversity exists based on the doctrines of fraudulent joinder and procedural misjoinder. For the following reasons, defendant's motion to dismiss the claims of plaintiffs Hancock, Tyler, and Barchiesi will be granted, and plaintiffs' motion to remand will be denied. I. Background Defendant GlaxoSmithKline, LLC manufactures the drug ondansetron under the brand name Zofran. Zofran was first approved in 1991 for the prevention of post-operative nausea and vomiting associated with anesthesia and for nausea and vomiting caused by radiotherapy and chemotherapy. In addition to those approved uses, GSK is alleged to have marketed Zofran "off-label" for pregnancy-related nausea and vomiting, commonly known as "morning sickness." Plaintiffs in this multidistrict litigation allege that Zofran was in fact unsafe for use in pregnant women, and that in utero exposure to Zofran caused birth defects in children born to mothers who took the drug. This particular action involves the claims of four plaintiffs: Kierra Simmons, Tia Hancock, Joanna Tyler, and Dawn Barchiesi. All four plaintiffs bring eight counts against defendant GSK arising out of congenital heart defects suffered by their children and allegedly caused by the plaintiffs' use of name-brand Zofran during pregnancy. The specific complaint at issue here was filed in state court in Missouri, removed to federal court, and then transferred to this MDL proceeding. Although filed in Missouri, the complaint asserts that only one of the four plaintiffs-Kierra Simmons-is a Missouri citizen. The complaint alleges that Tia Hancock is a citizen of Delaware; Joanna Tyler is a citizen of North Carolina; and Dawn Barchiesi is a citizen of Pennsylvania. All four have asserted similar and parallel product-liability claims against GSK, but those claims are otherwise unrelated.' GSK is a limited liability company with one member, GlaxoSmithKline Holdings, Inc., which is a Delaware corporation. ' . II. Analysis *2 By statute, federal district courts have original jurisdiction over civil actions between citizens of different Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 2 of 46 PageID: 1411 WESILAW 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 In re: Zofran (Ondansetron) Products Liability Litigation, Slip Copy (2016) 2016 WL 2349105 states when the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. "This statutory grant requires complete diversity between the plaintiffs and defendants in an action." Picciotto v. Continental Car. Co., 512 F.3d 9, 17 (1st Cir. 2008) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); Holleran v. Hoffman, 966 F.2d 45, 47 (1st Cir. 1992)). Plaintiffs contend that the case should be remanded to state court because the presence of a Delaware plaintiff (Hancock) and a Delaware defendant (GSK) means that there is not complete diversity between the parties. GSK, however, argues that the issue is not as straightforward as it appears. First, GSK contends that the Court should decide the issue of personal jurisdiction raised by its motion to dismiss before turning to the issue of subject-matter jurisdiction. Second, GSK contends that even if the Court first considers subject-matter jurisdiction, the doctrines of fraudulent joinder and procedural misjoinder preclude a finding that the parties are not diverse. A. Order of Analysis The initial question is which jurisdictional question should be decided first. When a party challenges both personal jurisdiction and subject-matter jurisdiction, there is no hard-and-fast rule dictating the order in which the district court must decide those issues. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-88 (1999). In cases where subject-matter jurisdiction "involve[s] no arduous inquiry, ... both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first." Id. at 587-88. However, if "a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question," then the court may address personal jurisdiction first. Id. at 588. In this case, considerations of judicial economy strongly suggest resolving the issue of personal jurisdiction ahead of subject-matter jurisdiction. Resolution of the question of subject-matter jurisdiction necessarily involves an assessment of GSK's contention that the three non-Missouri plaintiffs were either fraudulently joined or procedurally misjoined. "[T]he possibility of fraudulent joinder can make the subject matter jurisdiction analysis `rather complicated,' especially if the inquiry involves `the more unusual question of 'fraudulent joinder' of a plaintiff"' In re Testosterone Replacement Therapy Products Liab. Litig. Coordinated Pretrial Proceedings, 2016 WL 640520, at *3 (N.D. III. Feb. 18, 2016) (quoting Foslip Pharm., Inc. v. Metabolife Intl, Inc., 92 F. Supp. 2d 891, 899 (N.D. Iowa 2000)). The application of the doctrine of procedural misjoinder involves similarly complicated questions of law. See Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., 813 F. Supp. 2d 242, 246 (D. Mass. 2011) ("The [First Circuit] has not adopted or addressed the doctrine, and the only district courts within the First Circuit that have addressed the issue have declined to apply it.")' Both inquiries are made even more complicated where, as here, the alleged joinder deficiency is based not on the merits of the underlying claim, but on the ability of the Court to exercise personal jurisdiction over the defendant against whom the claim is made. Thus, the Court will first turn to GSK's contention that it is not subject to personal jurisdiction as to the claims of the three non-Missouri plaintiffs. 13. Personal Jurisdiction *3 When a district court considers a motion to dismiss for lack of personal jurisdiction without first holding an evidentiary hearing, a prima facie standard governs its determination. United States v. Swiss American Bank, 274 F.3d 610, 618 (1st Cir. 2001). In conducting a prima facie analysis, the court is required to take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed), construing them in the light most favorable to the plaintiff; the court, however, should not credit "conclusory allegations or draw farfetched inferences." Ticketmaster-New York v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994). Although the court will construe the facts in the light most favorable to the plaintiff in a motion to dismiss, the plaintiff still has the burden of demonstrating each jurisdictional requirement. See Swiss American Bank, 274 F.3d at 618. In a multidistrict litigation, a transferee court has personal jurisdiction over a defendant only if the transferor court would have had jurisdiction. In re FMC Corp. Patent Litig., 422 F. Supp. 1163, 1165 (Jud. Pan. Mutt. Lit. 1976) ("Following a transfer, the transferee judge has all the jurisdiction and powers over pretrial proceedings in the actions transferred to him that the transferor judge would have had in the absence of transfer."). "In determining whether a nonresident defendant is subject to its jurisdiction, a federal court exercising diversity jurisdiction is the functional equivalent of a state court sitting in the forum state." Daynard v. Ness, Motley, Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 3 of 46 PageID: 1412 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 in re: Zofran (Ondansetron) Products Liability Litigation, Slip Copy (2016) 2016 WL 2349105 Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002) (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir.1995)) (citation and internal quotation marks omitted). This case was transferred from United States District Court for the Eastern District of Missouri; therefore, this Court may exercise personal jurisdiction over a defendant only to the same extent that the state court in Missouri could have exercised such jurisdiction. The exercise of personal jurisdiction over a defendant must be authorized by statute and be consistent with the due process requirements of the United States Constitution. Nowak v. Tak How Invs., Ltd., 93 F.2d 708, 712 (1st Cir. 1996). "A district court may exercise authority over a defendant by virtue of either general or specific jurisdiction." Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass 'n, 142 F.3d 26, 34 (1st Cir. 1998). A defendant may also consent to personal jurisdiction in a forum where jurisdiction would not otherwise exist. See General Contracting & Trading Co., LLC v. Interpole, Inc., 940 F.2d 20, 22 (1st Cir. 1991). 1. General Jurisdiction "A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citing International Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945)). The parties do not dispute that GSK's sole member, GlaxoSmithKline Holdings, Inc., is incorporated in Delaware and maintains its principal place of business there. The Supreme Court has indicated that a foreign corporation will be deemed "at home" based on its operations in a forum other than its formal place of incorporation or principal place of business only in an "exceptional case." See Daimler AG v. Bauman, 134 S. Ct. 746, 761 n.19 (2014) (internal citations omitted). The complaint here contains no allegations suggesting that GSK's operations in Missouri are so "continuous and systematic" as to render this an "exceptional case"; rather, it appears that GSK simply markets and sells the product in Missouri, as it presumably does in the other 49 states. See id. at 761 ("[T]he exercise of general jurisdiction in every State in which a corporation 'engages in a substantial, continuous, and systematic course of business [would be] unacceptably grasping."). 2. Consent to Jurisdiction *4 Plaintiffs further contend that GSK is subject to general jurisdiction in Missouri because it has "consented" to that jurisdiction by appointing a registered agent for service of process in Missouri as required by statute. See Mo. Rev. Stat. § 351.586. The relevant portion of the Missouri statute for service on a foreign corporation provides: The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice, or demand required or permitted by laW to be served on the foreign corporation.... Mo. Rev. Stat. § 351.594. Courts that have considered the issue have reached differing conclusions, particularly in the Eastern District of Missouri. Compare Keeley v. Pfizer Inc., 2015 WL 3999488 (E.D. Mo. Jul. 1, 2015) (no consent to personal jurisdiction based on Missouri statutes requiring appointment of registered agent), and Neeley v. Wyeth LLC, 2015 WL 1456984 (E.D. Mo. Mar. 30, 2015) (same), with Chalkey v. SmithKline Beecham Corp., 2016 U.S. Dist. LEXIS 21462 (E.D. Mo. Feb. 23, 2016) (upholding personal jurisdiction based on consent), and Trout v. SmithKline Beecham, 2016 WL 427960 (E.D. Mo. Feb. 4, 2016) (same). It nonetheless appears clear that such a finding would distort the language and purpose of the Missouri registration statute and would be inconsistent with the Supreme Court's ruling in Daimler, 134 S. Ct. 746. The recent opinion of the Second Circuit in Brown v. Lockheed Martin Corp. on this issue is persuasive: [Plaintiff's] interpretation of Connecticut's registration statute is expansive. It proposes that we infer from an ambiguous statute and the mere appointment of an agent for service of process a corporation's consent to general jurisdiction, Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 4 of 46 PageID: 1413 creating precisely the result that the Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 5 of 46 PageID: 1414 WESTLAVV @ 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 In re: Zofran (Ondansetron) Products Liability Litigation, Slip Copy (2016) 2016 WL 2349105 Court so roundly rejected in Daimler. It appears that every state in the union-and the District of Columbia, as well-has enacted a business registration statute. See Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of Consent, 36 Cardozo L.Rev. 1343, 1363-65 & nn. 109 & 111-12 (2015) (listing statutes). States have long endeavored to protect their citizens and levy taxes, among other goals, through this mechanism. If mere registration and the accompanying appointment of an instate agent-without an express consent to genera l jurisdiction---nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler's ruling would be robbed of meaning by a back-door thief. 814 F.3d 619, 640 (2d Cir. 2016). As with the Connecticut statute at issue in Brown, the Missouri statute does not mention consent to personal jurisdiction in Missouri courts at all, much less provide for explicit consent to personal jurisdiction for claims based on conduct and injuries arising outside of Missouri.° Accordingly, GSK did not consent to personal jurisdiction in Missouri by appointing a registered agent for service of process in the state. 3. Specific Personal Jurisdiction *5 "Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff's claims and a defendant's forum-based activities." Massachusetts Sch. of Law, 142 F.3d at 34 (citations omitted). The parties do not dispute that specific personal jurisdiction over GSK exists in Missouri for the claims brought by plaintiff Simmons, who is a Missouri resident. However, "[q]uestions of specific jurisdiction are always tied to the particular claims asserted." Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289 (1st Cir. 1999) (citing United Elec., Radio and Mach. Workers of Am. v. 163 Pleasant Street Corp., 960 F2d 1080, 1089 (1st Cir. 1992) ("[T]he defendant's in-state conduct must form an 'important, or [at least] material, element of proof in the plaintiff's case")). The complaint falls far short of establishing any nexus between the non-Missouri plaintiffs' claims and GSK's Missouri- based activities. Unlike plaintiff Simmons, the non- Missouri plaintiffs do not allege that they were prescribed Zofran in Missouri, took Zofran in Missouri, or that their children suffered injuries in Missouri. Nor do they allege any facts connecting the conduct of GSK in Missouri, if any, to their own claims. Thus, to the extent that the claims of the non-Missouri plaintiffs relate to GSK's conduct in Missouri, they do so "only in the abstract or by analogy." In re Testosterone Replacement Therapy, 2016 WL 640520, at *5. It is therefore clear that a Missouri court would not have specific personal jurisdiction over the claims brought by those out-of-state plaintiffs.' 4. Conclusion Although the Court has specific personal jurisdiction over GSK for the claims brought by plaintiff Kierra Simmons, there is no basis for personal jurisdiction over GSK for the claims brought by the non-Missouri plaintiffs. . Accordingly, GSK's motion to dismiss will be granted as to the claims of plaintiffs Tia Hancock, Joanna Tyler, and Dawn Barchiesi. C. Subject-Matter Jurisdiction With the dismissal of plaintiffs Hancock, Tyler, and Barchiesi, the only remaining plaintiff is Kierra Simmons. The parties do not dispute that she is a citizen of Missouri for diversity purposes, and, as noted, the parties also do not dispute that GSK is a citizen of Delaware. Thus, there is complete diversity among the parties and the Court therefore has subject-matter jurisdiction over the dispute. Plaintiffs motion to remand will be denied.' III. Conclusion For the foregoing reasons, defendant's motion to dismiss for lack of personal jurisdiction is GRANTED without prejudice as to the claims of plaintiffs Tia Hancock, Joanna Tyler, and Dawn Barchiesi. Plaintiffs' motion to Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 6 of 46 PageID: 1415 WESTLAVV @ 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 In re: Zofran (Ondansetron) Products Liability Litigation, Slip Copy (2016) 2016 WL 2349105 remand is DENIED. All Citations Slip Copy, 2016 WL 2349105 So Ordered. Footnotes 1 The four plaintiffs are joined pursuant to Rule 52.05 of the Missouri Rules of Civil Procedure, which permits the joinder of plaintiffs asserting claims "arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action." 2 The parties do not dispute that GSK is a citizen of Delaware for diversity purposes. 3 "[questions of law in MDL-transferred cases are governed by the law of the transferee court." In re Fresenius Granuflo/Naturalyte Dialysate Products Liab. Litig., 76 F. Supp. 3d 321, 327 (D. Mass. 2015); In re Korean Air Lines Disaster of September 1, 1983, 829 F.2d 1171, 1174 (D.C. Cir. 1987). 4 As the Brown court noted, "The inclusion of this phrase ('permitted by law') and the omission of any specific reference to 'general jurisdiction,' to our reading, differentiates Connecticut's registration statute from others that have been definitively construed to convey a foreign corporation's consent to general jurisdiction." Brown, 814 F.3d at 637. 5 Although plaintiffs have not specifically requested that it do so, the Court declines to adopt the doctrine of pendent personal jurisdiction for the reasons outlined in In re Testosterone Replacement Therapy, 2016 WL 640520, at *5-6. 6 The presence of complete diversity following the dismissal of the non-Missouri plaintiffs makes it unnecessary for the Court to reach the issues surrounding defendant's argument that those plaintiffs' joinder was either fraudulent or procedurally improper. End of Document 0 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 7 of 46 PageID: 1416 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 2014 WL 1883791 Only the Westlaw citation is currently available. United States District Court, D. Kansas. Kimberly J. EAVES and Jason E. Eaves, Plaintiffs v. PIRELLI TIRE, LLC, a foreign limited liability company; Pirelli North America, Inc., a foreign corporation; Pirelli Tyre S.p.A, a foreign corporation; Pirelli & C. S.p.A., a foreign corporation; Pirelli Pneus Ltda., a foreign corporation; and Lemans Corporation, a foreign corporation, Defendants.' No. 13-127I-SAC. Signed May 12, 2014. Attorneys and Law Firms Kevin L. Diehl, Ronald P. Pope, Thomas B. Diehl, Ralston, Pope & Diehl LLC, Topeka, KS, for Plaintiffs. Peter Q. Ezzell, Marina Del Rey, CA, Ryan C. Hudson, Thomas P. Schult, Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP, Kansas City, MO, C. Vernon Hartline, Jr., Hartline Dacus Barger Dreyer, LLP, Dallas, TX, David E. Rogers, Mikel L. Stout, Foulston Siefkin LLP, Wichita, KS, for Defendants. MEMORANDUM AND ORDER SAM A. CROW, Senior District Judge. *1 Jason and Kimberly Eaves, husband and wife, were riding a motorcycle in Jasper county, Iowa, on July 17, 2011, when the rear tire blew out causing a serious accident. Jason had purchased this rear tire, a Metzeler ME 880 Marathon MDS tire in Manhattan, Kansas, on or about September 22, 2010. This is a product liability action where it is alleged the accident was caused or contributed to by a tire manufacturing defect, tire design defect, or a failure to warn of appropriate use and application of the tire. The defendants, Pirelli & C. S.p.A., (Dk.30) ("Pirelli & C"); Pirelli Pneus Ltda ("Pirelli Pneus"), (Dk.32); Pirelli Tyre S.P. A. ("Pirella Tyre"), (Dk.34) separately move for dismissal pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(5) for insufficient service of process. In their complaint, the plaintiffs allege that as to the defendant Pirelli Pneus, it was incorporated in Brazil with its principal place of business in Santo Andre, Brazil, and as to the defendants, Pirelli & C and Pirelli Tyre, they are incorporated in Italy with their principal places of business in Milan, Italy. For all three defendants, the complaint alleges they are: engaged in the business of designing, manufactur ing, marketing, distributing, and selling t i r es whi ch are u l t ima te ly distributed and sold throughout the United States, including the State of Kansas, and are sold for economic benefit in retail stores through the State of Kansas. By seeking a nationwide distribution of its tires, Defendant Pirelli Tyre S.p.A. [and Defendant Pirelli & C. S.p.A.] has purposefully availed itself of doing business in the State of Kansas and has sufficient minimum contacts to justify being subject to the jurisdiction of this Court. This Court has jurisdiction over Defendant Pirelli Tyre S.p.A. [and Defendant Pirelli & C. S.p.A.] i n t h a t D e f e n d a n t , u p o n information and belief, knowingly supplies tires for sale in stores and with retailers throughout the State of Kansas and the United States, and it supplied a defective tire that was distributed under conditions establish by Defendant Pirelli Tyre S.p.A. [and Defendant Pirelli & C. S.p.A.], causing injury to the plaintiffs in the State of Iowa. (Dk.1,111I 9, 11). The plaintiffs' complaint alleges the following details on the moving defendants' corporate structure. Head of a Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 8 of 46 PageID: 1417 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 multinational Group with worldwide operations in the tire business, Pirelli & C "owns and controls all the Group's operations." (Dk. 1 ¶ 16.). Pirelli & C "manages, finances, and coordinates the operation of its subsidiaries." Id. at ¶ 17. Pirelli Tyre "engages in the design, development, production, and marketing of tires" with factories around the world. Id. at ¶ 18. Pirelli & C and Pirelli Tyre share the same address. Id. at 19 and 20. "Defendant Pirelli Tyre S.P.A. handles the tire business for the multinational Group of business held ultimately by Defendant Pirelli & C. S.p.A. Defendant Pirelli Pneus LTDA is a Brazilian subsidiary of Pirelli Tyre, S.p.A." Id. at 27. Pirelli & C owns 100% of Pirelli Tyre, id at ¶ 29, and, in turn, Pirelli Tyre owns 100% of Pirelli Pneus. Id. at ¶ 26. *2 As for the defendants' distribution network, the plaintiffs allege that the Defendant LeMans Corporation is "the sole United States distributor of Pirelli tire products," id. at ¶ 30, and that the moving defendants "have established through Defendant LeMans Corporation a nationwide network for distribution of their products, ... to the United States' consumer market, including the State of Kansas," id. at 131. The complaint describes LeMans Corporation as operating a website with the name of Parts Unlimited that enables it to reach consumers across the United States, including Kansas. Id. at 32. The plaintiffs allege all defendants were aware that the "ordinary distribution channels and subsequent use" of the subject tire and other tires manufactured by Pirelli Tyre or by companies owned and/or operated by Pirelli included the State of Kansas. Id. at ¶ 34. The complaint includes, that lajt all times material hereto, all Defendants were actively seeking business in Kansas, including but not limited to through the internet and through a specialized sales force." Id. at 35. The complaint concludes that, "the Pirelli Defendants ... use of an exclusive distributor for motorcycle tires to reach all fifty (50) states, including the State of Kansas, constitutes purposeful availment." Id. at ¶ 39. In support of their Rule 12(6)(2) motions, the defendants submit affidavits challenging the plaintiffs' allegations for grouping the defendants for jurisdictional purposes and attributing them with Pirelli Pneus' manufacturing activities and with LeMans' business contacts and marketing activities within Kansas. Pirelli & C and Pirelli Tyre deny that they designed, manufactured, distributed or sold the tire in question. Pirelli & C is the holding company for the stock of Pirelli Tyre which is the holding company for Pirelli Pneus. Even so, Pirelli & C and Pirelli Tyre submit affidavits from knowledgeable business directors showing that they have separate management and boards from Pirelli Pneus, that they do not pay the salaries of Pirelli Pneus' employees, and that Pirelli Pneus is responsible for its own financial management and generates its own substantial revenue. All three moving defendants offer affidavits showing no contacts with Kansas in terms of business, legal, employment, physical, or marketing activities. As for LeMans, the defendants cite the deposition evidence' tendered by the plaintiffs and note that it does not show any affiliation between LeMans d/b/a Parts Unlimited and a Pirelli group member other than being a customer of Pirelli Tire LLC.' Thus, the defendants challenge the plaintiffs as having failed to make a prima facie case of connections between them and the forum state and of their involvement in an orchestrated and sophisticated global distribution system that included Kansas as a target. On a Rule 12(b)(2) motion, the burden is with the plaintiff to establish personal jurisdiction, and the weight of this burden varies with the stage of proceeding. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th Cir.2008); Smalls v. Stermer, 2011 WL 1234781, at *2 (D.Kan.2011), aff'd, 457 Fed. Appx. 715 (10th Cir. Jan.10, 2012). At this stage which is in advance of an evidentiary hearing, "the plaintiff must only make a prima facie showing of personal jurisdiction ... 'by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over' " each of the moving defendants. Melea, Ltd v. Jawer SA, 511 F.3d 1060, 1065 (10th Cir.2007) (quoting TH Agric. & Nutrition, LLC v. Ace European Group Ltd., 488 F.3d 1282, 1286 (10th Cir.2007)). The court takes "as true all well-pled (that is, plausible, non-conclusory, and nonspeculative) facts alleged in plaintiff's complaint." Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011) (internal quotation marks and citation omitted). The court, however, does not accept as true those allegations in the complaint contradicted by the defendant's affidavits, but it must "resolve any factual disputes in the plaintiffs favor." Melea, 511 F.3d at 1065. *3 Applying these rules to the parties' submissions, the court accepts the allegations from the plaintiffs' complaint that are not contradicted by the defendants' affidavits and the facts evidenced in the defendants' affidavits that are not disputed by competent proof from the plaintiffs. Pirelli & C is the holding company for the stock of Pirelli Tyre, and Pirelli Tyre is the holding company for the stock of Pirelli Pneus, S.A. Pirella Tyre also holds 100% of defendant Pirelli North America, Inc. which in turn holds 100% of Defendant Pirelli Tire, LLC, Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 9 of 46 PageID: 1418 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 which has its principal place of business in Rome, Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 10 of 46 PageID: 1419 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 Georgia, and has LeMans as its sole American customer for Metzeler motorcycle tires. Pirelli Tire, LLC processes the warranty claims on behalf of Pirelli-manufactured tires. The tire that is the subject of this lawsuit was manufactured by Pirelli Pneus, S.A. The affidavit of Maurizio Sala, Planning and Controlling Director for Pirelli Tyre, S.p.A., the affidavit of Francesco Tanzi, Chief Financial Officer for Pirelli & C, and the affidavit of Mario Batista, Latin America Corporate Affairs Director for Pirelli Pneus' show that Pirelli & C and Pirelli Tyre are distinct corporate entities from Pirelli Pneus which is separately managed with its own board of directors and with all of the commercial transactions between them being the subject of lawful contracts. Pirelli Pneus, S.A. keeps its own books and financial statements and handles its own financial management and accounting. Pirelli Pneus, S.A. enjoys significant revenue from its own business activities and products, and neither Pirelli Tyre nor Pirelli & C pays the salaries of any Pirelli Pneus' employees. From the annual financial reports of Pirelli & C, the plaintiffs excerpt several statements to build an argument that Pirelli & C sits atop all the subsidiaries, controls their relevant operations, and directs a global distribution network for its tires that extends to Kansas. They cite, "At December 31, 2012, the Non-EU Companies that were directly or indirectly controlled by Pirelli & C, S.p.A. and of material interest pursuant to Article 36 of the Market Regulation: Pirelli Pneus Ltda (Brazil); Pirelli Tire LLC (USA);...." (Dk.38-1, p. 102). It is noted that the chairman of Pirelli & C's board is also the Chief Executive Officer of Pirelli Tyre. The financial report refers to a "Pirelli Group" and defines it as "all the companies included in the scope of consolidation of Pirella & C. S.p.A." (Dk.38-1, p. 106). The report later outlines, "scope of consolidat ion" to include "subsidiaries," that is, "[a]ll companies and entities whose financial and operating policies are subject to control by the Group are considered subsidiaries." Id at p. 167. While the appearance of these statements is evidence of some control, the plaintiffs are seeking to allege a level of control exceeding the typical relationship between a holding or parent corporation and its subsidiary corporation. The plaintiffs do not offer the detail or evidence to sustain their conclusory allegations in this respect. As will be discussed later, alleging facts for an agency relationship or for piercing a corporate veil require more. *4 The tire in question was not designed, manufactured or sold by Pirelli C or by Pirelli Tyre, and they did not place this tire into the stream of commerce. As for how the subject motorcycle tires entered into the stream of United States commerce, the plaintiffs' memoranda quote and incorporate the following averments submitted by the defendants: The process by which ti res manufactured by Pirelli Pneus were distributed by LeMans was as follows: (1) LeMans places a tire order on a central ordering system to which Pirelli Tire, LLC has access (Pirelli Pneus, Ltda. does not have access to the ordering system); (2) based on multiple factors, including the type of tire requested and size of tire requested, a manufacturing facility is selected to make the order; (3) Pirelli Tire LLC is notified when the order is ready for shipment; (4) Pirelli Tire LLC then notifies LeMans or LeMans ' f reight forwarder , Phoenix International Freight Services Limited ("Phoenix"), that the order is ready; (5) LeMans directs Phoenix to arrange for tires manufactured by Pirelli Pneus Ltda. to be picked up in Brazil; (6) Phoenix then arranges for those tires to be shipped (in a container provided by Phoenix) from Brazil to LeMans in the United States (all charges and responsibility for such items as international carriage and Customs clearance to be born by LeMans); (7) after Phoenix picks up the tires, Pirelli Tire LLC sends LeMans an invoice for such tires; and (8) LeMans distributes the tires to various tire dealers in the United States. (Pirelli Pneus' memorandum, Dk. 33, p. 14; Plaintiffs' memoranda Dk. 38, p. 6; Dk. 39, p. 6; Dr. 40, p. 6). From this, the plaintiffs speculate "the Pirelli Group, which includes Pirelli Pneus, was at all times aware that the subject Metzler tire[s] ... were being placed into the Kansas' stream of commerce through the aforementioned Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 11 of 46 PageID: 1420 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 distribution channels." Id. The defendant Pirilli Pneus, however, offers the balance of the affidavit of Marcelo Natalini, the Business Unit Motorcycle Latin America Director for Pirelli Pneus, who avers that Lemans "solely determines where the tires will go" and that once the tires are picked up at the Brazil plant by Phoenix, then Lemans assumes all freight charges, customs duty, marine insurance and paperwork responsibilities. (Dk.33-2, ¶ 21). Natalini further avers that LeMans unilaterally decides where to send tires, that Pirelli Pneus does not control LeMans which is a separate entity, and that Pirelli Pneus does not direct or guide LeMans' advertising or sales efforts. Id. at 11 22-24. Both Batista and Natalini aver on behalf of Pirilli Pneus that it "does not and has never sold tires to LeMans." (Dk. 33-1,1 20; 33-2, ¶ 20). Short of attributing them with the activities of LeMans d/b/a Parts Unlimited, none of the moving defendants have any real or meaningful connections to the State of Kansas. They are not residents of the State, have no offices here, and are not licensed to do business in Kansas. They have not regularly transacted business here and do not maintain a registered agent for service of process. They have never sold goods or services in the State of Kansas and have never advertised or solicited business here. They have never contracted with a Kansas resident or entered into a contract which was to be performed in whole or in part in Kansas. They have never marketed any products through a distributor who served as a sales agent to Kansas. They do not own, lease or rent any property in Kansas and maintain no bank accounts, loans, accounting work or administrative functions here. *5 "Personal jurisdiction is established by the laws of the forum state and must comport with constitutional due process." Fireman's Fund Ins. Co. v. Thyssen Min. Constr. of Canada, Ltd., 703 F.3d 488, 492 (10th Cir.2012). As liberally construed by Kansas courts, the forum's long-arm statute extends "personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment of the United States Constitution." In re Hesston Corp., 254 Kan. 941, 951, 870 P.2d 17 (1994) (internal quotation marks and citation omitted). Because the forum's long-arm statute is co-extensive with limitations set by the due process clause, the court will "proceed directly to the constitutional issue." Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994). Due process analysis entails two steps: first, "whether the nonresident defendant has minimum contacts with the forum state such that he should reasonably anticipate being haled into court there," and if that step is met, then second, "whether the court's exercise of jurisdiction over the defendant offends traditional notions of fair play and substantial justice, that is, whether the exercise of jurisdiction is reasonable under the circumstances." Melea, Ltd, 511 F.3d at 1065-66 (internal quotation marks and citations omitted). The first step requiring "minimum contacts" is cleared either by general jurisdiction, when "a defendant has continuous and systematic general business contacts with the forum state," or by specific jurisdiction when a defendant "purposefully direct[s] its activities at the state residents" and "the cause of action arises out of those activities." Melea, Ltd., 511 F.3d at 1066 (internal quotation marks and citations omitted); see Daimler AG v. Bauman, - U.S. -, 134 S.Ct. 746, 751, 187 L.Ed.2d 624 (2014) (for general jurisdiction, the minimum contacts are "so constant and pervasive 'as to render [it] essentially at home in the forum State." (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, -U.S. -, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)); Fireman's Fund Ins. Co., (for specific jurisdiction, the minimum contacts must come from the defendant having "purposefully availed itself of the privilege of conducting business within the forum State" and "must make being sued there foreseeable so that the defendant could reasonably anticipate the suit." (internal quotation marks and citations omitted)). "In all events, the shared aim of `purposeful direction' doctrine has been said by the Supreme Court to ensure that an out-of-state defendant is not bound to appear to account for merely 'random, fortuitous, or attenuated contacts' with the forum state." Dudnikov, 514 F.3d at 1071 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Pirelli Group In arguing for both general and personal jurisdiction, the plaintiffs bring all the defendants, including the moving defendants, under the umbrella of the "Pirelli Group." They do so based, in part, on Pirelli & C's financial statements' use of the term "Pirelli Group" defined as "all the companies included in the scope of consolidation," (Dk.38-1, p. 106). The "scope of consolidation" includes "subsidiaries," that is, "[a]ll companies and entities whose financial and operating policies are subject to control by the Group ... [which] is normally satisfied when the Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 12 of 46 PageID: 1421 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 Group owns more than half of the voting rights." Id at p. 167. The plaintiffs point to the descending chain of holding companies from Pirelli & C to Pirelli Tyre to Pirelli Pneus and Pirelli North American to Pirelli Tire and its merger with Metzeler Motorcycle Tire North America. From these circumstances, the plaintiffs leap to characterizing all of the defendants' tire business activities as a single sophisticated and orchestrated global distribution system and then to making every corporate activity attributable to each entity. The sweeping terms of these allegations resemble in character what have been regarded as conclusory allegations rather than plausible and non-speculative allegations. See Shrader v. Biddinger, 633 F.3d 1235, 1248 (10th Cir.2011); Pro Fit Management, Inc. v. Lady of America Franchise Corporation, 2010 WL 4810227 at *3 (D.Kan. Nov.19, 2010). More troubling to the court, is that the plaintiffs fail to argue and apply a particular legal theory for its allegations of treating all of these distinct legal entities as one. It is not this court's burden to proceed with an agency or alter ego legal theory and advocate its application here. *6 The Supreme Court recently noted that some federal appellate courts "have held, that a subsidiary's jurisdictional contacts can be imputed to its parent only when the former is so dominated by the latter as to be its alter ego." Daimler AG v. Bauman, -U.S.----, - U.S. -, -, 134 S.Ct. 746, 759, 187 L.Ed.2d 624 (2014). "A holding or parent company has a separate corporate existence and is treated separately from the subsidiary in the absence of circumstances justifying disregard of the corporate entity." Benton v. Cameco Corp., 375 F.3d 1070, 1081 (10th Cir.2004) (internal quotation marks and citation omitted), cert. denied, 544 U.S. 974, 125 S.Ct. 1826, 161 L.Ed.2d 723 (2005); see Birmingham v. Experian Information Solutions, Inc., 633 F.3d 1006, 1018 (10th Cir.2011) ("A subsidiary corporation is presumed to be a separate and distinct entity from its parent corporation.") (internal quotation marks and citation omitted)); In re Phenylpropanolamine (PPA) Products Liability Litigation, 344 F.Supp.2d 686, 691 (W.D.Wash.2003)'. The plaintiffs have not cited legal authority for an alter ego claim here and their conclusory allegations fall short of presenting a prima facie claim. The moving defendants submit business affidavits that show the relationship between the manufacturer Pirelli Pneus and either Pirelli & C or Pirelli Tyre is that they "are separate, distinct legal corporate entities, each maintaining their own corporate formalities as evidenced by ... separate management; .... own financial management and accounting, ...; ... separate boards of directors; and Pirelli Pneus S.A. generates substantial revenue from its own business activities and products." (Dk. 31-1, p. 5; 35-1, p. 5). The affidavits further state that "[a}11 commercial transactions" between Pirelli Pneus and either Pirelli & C or Pirelli Tyre "are set out in legally enforceable contracts." Id "[Elven well-pleaded jurisdictional allegations are not accepted as true once they are controverted by affidavit (here, based on personal knowledge of the party with direct access to operative facts)." Shrader v. Biddinger, 633 F.3d at 1248 (citation omitted). Without "specific averments, verified allegations, or other evidence sufficient to create a genuine issue of fact," the defendants' affidavits "carry the issue" on the alter ego analysis. See id. The plaintiffs similarly fail to articulate a viable agency claim and to support it with plausible factual allegations. The Supreme Court in Daimler observed: Agencies, we note, come in many sizes and shapes: "One may be an agent for some business purposes and not others so that the fact that one may be an agent for one purpose does not make him or her an agent for every purpose." 2A C.J.S., Agency § 43, p. 367 (2013) (footnote omitted). A subsidiary, for example, might be its parent's agent for claims arising in the place where the subsidiary operates, yet not its agent regarding claims arising elsewhere. *7 134 S.Ct. at 759. This highlights the court's difficulty in attaching significance to the plaintiffs' sweeping allegations based on Pirelli & C's financial statements. For example, as the moving defendants point out, Pirelli & C's "financial risk management" of subsidiaries in lending money is an entirely different matter from controlling "distribution, production, or sales" of tires, in particular, motorcycle tires. (Dk.49, p. 7); see supra n. 5. Discussing the agency relationship in the personal jurisdiction setting, the Tenth Circuit has observed that such a relationship is not presumed but "must be clearly demonstrated" and that it is a "fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 459 (10th Cir.1996) (internal quotation marks and citation omitted). The plaintiffs' allegations and proof do not come close to making a prima facie case of alter ego or agency. See Coe v. Philips Oral Healthcare Inc., 2014 WL 585858 at *5 (W.D.Wash. Feb.14, 2014) (one entity is involved in daily running of the other and there is overlapping management). Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 13 of 46 PageID: 1422 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 This agency question will be discussed again in looking at the plaintiffs' efforts to establish specific jurisdiction based on LeMans' sales in Kansas as an alleged distributor/agent. The Supreme Court certainly has indicated that agency principles will guide the analysis and weighing of distributor activity in the forum: Agency relationships, we have recognized, may be relevant to the existence of specific jurisdiction. "[T]he corporate personality," International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), observed, "is a fiction, although a fiction intended to be acted upon as though it were a fact." Id. at 316. See generally 1 W. Fletcher, Cyclopedia of the Law of Corporations § 30, p. 30 (Supp.2012-2103) ("A corporation is a distinct legal entity that can act only through its agents."). As such a corporation can purposefully avail itself of a forum by directing its agents or distributors to take action there. See, e.g., Asahi, 480 U.S. at 112 (opinion op'Connor, J.) (defendant's act of "marketing [a] product through a distributor who has agreed to serve as the sales agent in the forum State" may amount to purposeful availment); International Shoe, 326 U.S. at 318 ("the commission of some single or occasional acts of the corporate agent in a state" may sometimes "be deemed sufficient to render the corporation liable to suit" on related claims). See also Brief for Petitioner 24 (acknowledging that "an agency relationship may be sufficient in some circumstances to give rise to specific jurisdiction"). Daimler AG v. Bauman, 134 S.Ct. at 759 n. 13. General Jurisdiction "Because general jurisdiction is not related to the events giving rise to the suit, courts impose a more stringent minimum contacts test, requiring the plaintiff to demonstrate the defendant's continuous and systematic general business contacts." Benton v. Cameco Corp., 375 F.3d 1070, 1080 (10th Cir.2004) (internal quotation marks and citation omitted). Factors relevant to consider include: *8 "In assessing contacts with a forum, courts have considered such factors as: (1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in t h e f o r u m s t a t e , t h r o u g h advertisements listings, or bank accounts; and (4) the volume of business conducted in the state by the corporation." Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d at 457 (quoting Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533 (10th Cir.1996)); see Monge v. RG Petro-Machinery (Group) Co. Ltd, 701 F.3d 598, 620 n. 9 (10th Cir.2012) (a I2-factor test used for Utah cases, Soma Medical Intern. v. Standard Chartered Bank, 196 F.3d 1292, 1295-96 (10th Cir.1999), and the four-factor test used for other states). Supreme Court decisions establish the court's inquiry "is not whether a foreign corporation's in-forum contacts can be said to be in some sense 'continuous and systematic,' it is whether that corporation's 'affiliations with the State are so `continuous and systematic' as to render [it] essentially at home in the forum State." Daimler AG v. Bauman, 134 S.Ct. at 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. at 2851). For a foreign corporation, the "paradigm bases for general jurisdiction" are the "place of incorporation and principal place of business." Daimler AG, 134 S.Ct. at 760 (internal quotation marks and citations omitted). The Supreme Court's conclusion in Daimler AG is revealing: Here, neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there. If Daimler's California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA's sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants 'to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.' Burger King Corp. [v. Rudzewicz], 471 U.S. [462] at 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 [ (1985) ] (internal quotation marks omitted). Daimler AG, 134 S.Ct. at 761-762. The principles of general jurisdiction certainly are to respect foreign defendants' efforts "to structure" their activities as to assure them that such "will not render liable to suit." Id Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 14 of 46 PageID: 1423 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 In arguing for general jurisdiction, the plaintiffs rely on the moving defendants putting the tires into a stream of commerce and then using LeMans as its "exclusive distributor and agent." (Dk.40, p. 20). The Supreme Court recently clarified that such a stream of commerce argument for general jurisdiction has been rejected: Most recently, in Goodyear, we answered the question: "Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?" 564 U.S., at -, 131 S.Ct., at 2850.... *9 We reversed, observing that the North Carolina court's analysis "elided the essential difference between case-specific and all-purpose (general) jurisdiction." Id., at , 131 S.Ct., at 2855. Although the placement of a product into the stream of commerce "may bolster an affiliation germane to specific jurisdiction," we explained, such contacts "do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant." Id., at  131 S.Ct., at 2857. As International Shoe itself teaches, 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." 326 U.S., at 318, 66 S.Ct. 154, 90 L.Ed. 95. Because Goodyear's foreign subsidiaries were "in no sense at home in North Carolina," we held, those subsidiaries could not be required to submit to the general jurisdiction of that State's courts. 564 U.S., at  131 S.Ct., at 2857. See also J McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. -, -, 131 S.Ct. 2780, 2797-2798, 180 L.Ed.2d 765 (2011) (GINSBURG, J., dissenting) (noting unanimous agreement that a foreign manufacturer, which engaged an independent U.S.-based distributor to sell its machines throughout the United States, could not be exposed to all-purpose jurisdiction in New Jersey courts based on those contacts). Daimler AG, 134 S.Ct. at 757. The plaintiffs' stream of commerce arguments are to no avail for general jurisdiction. The evidence of record establishes that LeMans is an independent distributor of Metzeler tires, and there is no viable ground for extending general jurisdiction to the moving defendants based on LeMans' sales and marketing activities. The factors applied by the Tenth Circuit plainly weigh against general jurisdiction. The affiliations between the moving defendants and Kansas are not continuous and systematic and do not render them essentially at home in Kansas. None of the plaintiffs' arguments are sufficient to make out a prima facie case of general jurisdiction, and any additional evidence of sales activities by LeMans would not change this conclusion. Specific Jurisdiction For specific jurisdiction, the minimum contacts requirement looks at "whether the defendant purposefully availed itself of the privilege of conducting activities within the forum State." Monge, 701 F.3d at 613 (internal quotation marks and citations omitted). This includes considering: The "requirement of 'purposeful availment' for purposes of specific jurisdiction precludes personal jurisdiction as the result of 'random, fortuitous, or attenuated contacts.' " Bell Helicopter Textron, Inc. v. HeliQwest Ina, Ltd., 385 F.3d 1291, 1296 (10th Cir.2004) (quoting Burger King, Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Although "it is foreseeable that" a product might travel to a forum state, such foreseeability is not "a sufficient benchmark for personal jurisdiction under the Due Process Clause." World-Wide Volkswagen Iv. Woodson], 444 U.S. [286] at 295, 100 S.Ct. 559, 62 L.Ed.2d 490 [ (1980) ]. "[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will fmd its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. at 297, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490. *10 In addition to the requirement that a defendant "purposefully direct [ ] his activities at residents of the forum," the litigation must "result [ ] from alleged injuries that arise out of or relate to those activities." Intercon, [Inc. v. Bell All. Internet Solutions, Inc.], 205 F.3d [1244] at 1247 [ (10th Cir.2000) ] (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174, 85 L.Ed.2d 528); see also Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996) (defendant's contacts "must reflect purposeful availment and the cause of action must arise out of those contacts."); OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir.1998) Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 15 of 46 PageID: 1424 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 (defendant's actions must "create a substantial connection with the forum state," and the "defendant's presence in the forum [cannot have arisen] from the unilateral acts of someone other than the defendant." (citations omitted) (quotations omitted)). Mange, 701 F.3d at 613-14. The determination of minimum contacts turns on the particular facts of a case with the court examining "the quantity and quality of the contacts." Id. at 614. With regard to the stream of commerce argument on which the plaintiff relies here, the Tenth Circuit has summarized the two approaches to this theory as discussed in Supreme Court opinions: Between World-Wide Volkswagen, where the Supreme Court first mentioned stream of commerce, and Asahi, where the Court next addressed it, courts reached two different interpretations of the stream of commerce approach to purposeful availment. See Asahi [Metal Indus. Co., Ltd. v.Super. Ct. of Cal., Solano Cnty], 480 U.S. 102] at 110-111, 107 S.Ct. 1026, 94 L.Ed.2d 92 [ (1987) ]; see also J. McIntyre Mach., Ltd. v. Nicastro, -U.S. -, -U.S. -, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) ... As explained by the Asahi plurality, to find purposeful availment, the first approach requires more than placing a product into the stream of commerce. Asahi, 480 U.S. at 112 (plurality opinion). The substantial connection between the defendant and the forum "must come about by an action of the defendant purposefully directed toward the forum State." Id (emphasis in original); see also J. Mclntryre, 131 S.Ct. at 2788-89. Under the second approach, simply placing a product into the stream of commerce is consistent with due process as long as the defendant "is aware that the final product is being marketed in the forum State." Asahi, 480 U.S. at 117 (Brennan, J., concurring); see also J. McIntyre, 131 S.Ct. at 2788. Monge, 701 F.3d at 619. Also in 2011, a unanimous opinion by the Supreme Court summarized the stream of commerce theory in these terms: The stream-of-commerce metaphor has been invoked frequently in lower court decisions permitting "jurisdiction in products liability cases in which the product has traveled through an extensive chain of distribution before reaching the ultimate consumer." 18 W. Fletcher, Cyclopedia of the Law of Corporations § 8640.40, p. 133 (rev.ed.2007). Typically, in such cases, a nonresident defendant, acting outside the forum, places in the stream of commerce a product that ultimately causes harm inside the forum. See generally Dayton, Personal Jurisdiction and the Stream of Commerce, 7 Rev. Litigation 239, 262-268 (1988) ( d i sc u ss in g or i g in s and evo l ut io n of the stream-of-commerce doctrine). *11 Flow of a manufacturer's products into the forum, we have explained, may bolster an affiliation germane to specific jurisdiction. See, e.g., World-Wide Volkswagen, 444 U.S., at 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (where "the sale of a product ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve the market for its product in [several] States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others" (emphasis added)). Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. at 2855. This case certainly requires the court to take a closer look at the stream of commerce theory and the differing interpretations of it. The Supreme Court's decision in McIntyre rejected the New Jersey Supreme Court's expansive exercise of personal jurisdiction over a British manufacturer based on a finding that " 'so long as the manufacturer 'knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.' " 131 S.Ct. at 2785 (quoting Nicastro v. McIntyre Mach. Am., Ltd, 201 N.J. 48, 987 A.2d 575, 591-92 (2010)). Using that test, the state court "concluded that a British manufacturer of scrap metal machines was subject to jurisdiction in New Jersey, even though at no time had it advertised in, sent goods to, or in any relevant sense targeted the State." Id. In reversing, the Supreme Court majority did not find the following facts/arguments sufficient for personal jurisdiction: First, an independent company agreed to sell J. McIntyre's machines in the United States. J. McIntyre itself did not sell its machines to buyers in this country beyond the U.S. distributor, and there is no allegation that the distributor was under J. McIntyre's control. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 16 of 46 PageID: 1425 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 Second, J. McIntyre officials attended annual conventions for the scrap recycling industry to advertise J. McIntyre's machines alongside the distributor. The conventions took place in various states, but never in New Jersey. Third, no more than four machines ..., including the machine that caused the injuries are the basis for this suit, ended up in New Jersey. In addition to these facts emphasized by petitioner, the New Jersey Supreme Court noted that J. McIntyre held both United States and European patents on its recycling technology. 201 N.J. at 55, 987 A.2d at 579. It also noted that the U.S. distributor "structured [its] advertising and sales efforts in accordance with" J. McIntyre's "direction and guidance whenever possible," and that "at least some of the machines were sold on consignment to the distributor." Id. at 55, 56, 987 A.2d at 579 (internal quotation marks omitted). 131 S.Ct. at 2786. Writing for the four-member plurality, Justice Kennedy discussed that the stream of commerce approach in World-Wide Volkswagen only "observe[d] that a defendant may in an appropriate case be subject to jurisdiction without entering the forum-itself an unexceptional proposition-as where manufacturers or distributors 'seek to serve' a given State's market." 131 S.Ct. at 2788 (quoting World-Wide Volkswagen, 444 U.S. at 298). Thus, the stream of commerce argument is still subject to general principles of personal jurisdiction, that is, "the defendant must purposefully avai[1] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id (internal quotation marks and citations omitted). Choosing Justice O'Connor's plurality formulation of the stream of , commerce approach in Asahi over that of Justice Brennan's, Justice Kennedy wrote in part: *12 Since Asahi was decided, the courts have sought to reconcile the competing opinions. But Justice Brennan's concurrence, advocating a rule based on general notions of fairness and foreseeability, is inconsistent with the premises of lawful judicial power. This Court's precedents make clear that it is the defendant's actions, not his expectations, that empower a State's courts to subject him to judgment. .. [F]oreign corporations will often target or concentrate on particular States, subjecting them to specific jurisdiction in those forums. The conclusion that the authority to subject a defendant to judgment depends on purposeful availment, consistent with Justice O'Connor's opinion in Asahi, does not by itself resolve many difficult questions of jurisdiction that will arise in particular cases. The defendant's conduct and the economic realities of the market the defendant seeks to serve will differ across cases, and judicial exposition will, in common-law fashion, clarify the contours of that principle. J. McIntyre, 131 S.Ct. at 2789-90. Proof of the defendant manufacturer's purposeful business activities directed at the United States did not establish that it had purposefully directed its activities at New Jersey. Id. at 2790. The plurality opinion holds that "[t]he defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State." Id. In short, the plurality opinion takes the stream of commerce plus approach: the product ends up in the forum after being placed into the stream of commerce plus the defendant did something more to purposefully avail itself of the forum's market. Concurring in the plurality's judgment, Justice Breyer eschewed settling on just one interpretation from Asahi in favor of finding that the facts did not support the exercise of personal jurisdiction under any of the interpretations. He wrote in relevant part: And the Court, in separate opinions, has strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place. See Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 111, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (opinion of O'Connor, J.) (requiring "something more" than simply placing "a product into the stream of commerce," even if defendant is "awar[e]" that the stream "may or will sweep the product into the forum State"); id., at 117, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (Brennan, J., concurring in part and concurring in judgment) Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 17 of 46 PageID: 1426 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 (jurisdiction should lie where a sale in a State is part of "the regular and anticipated flow" of commerce into the State, but not where that sale is only an "edd[y]," i.e., an isolated occurrence); id, at 122, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (Stevens, J., concurring in part and concurring in judgment) (indicating that "the volume, the value, and the hazardous character" of a good may affect the jurisdictional inquiry and emphasizing Asahi's "regular course of dealing"). *13 Here, the relevant facts found by the New Jersey Supreme Court show no "regular ... flow" or "regular course" of sales in New Jersey; and there is no "something more," such as special state-related design, advertising, advice, marketing, or anything else. Mr. Nicastro, who here bears the burden of proving jurisdiction, has shown no specific effort by the British Manufacturer to sell in New Jersey. He has introduced no list of potential New Jersey customers who might, for example, have regularly attended trade shows. And he has not otherwise shown that the British Manufacturer "purposefully avail[ed] itself of the privilege of conducting activities" within New Jersey, or that it delivered its goods in the stream of commerce "with the expectation that they will be purchased" by New Jersey users. World-Wide Volkswagen, supra, at 297-298, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (internal quotation marks omitted). J. McIntyre, 131 S.Ct. at 2792. Using the different approaches, Justice Breyer found the record did not show either that the defendant had established a regular flow of products into New Jersey or that there is "something more" to evidence the defendant targeting New Jersey. Later in the concurring opinion, Justice Breyer exposes how the sweeping approach proposed by the New Jersey Supreme Court is opposed by the Court's traditional due process analysis: Under that view, a producer is subject to jurisdiction for a products-liability action so long as it "knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states." 201 N.J., at 76-77, 987 A.2d, at 592 (emphasis added). In the context of this case, I cannot agree. For one thing, to adopt this view would abandon the heretofore accepted inquiry of whether, focusing upon the relationship between "the defendant, the forum, and the litigation," it is fair, in light of the defendant's contacts with that forum, to subject the defendant to suit there. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (emphasis added). It would ordinarily rest jurisdiction instead upon no more than the occurrence of a product-based accident in the forum State. But this Court has rejected the notion that a defendant's amenability to suit "travel[s] with the chattel." World-Wide Volkswagen, 444 U.S., at 296, 100 S.Ct. 559, 62 L.Ed.2d 490. For another, I cannot reconcile so automatic a rule with the constitutional demand for "minimum contacts" and "purposefu[1] avail[ment]," each of which rest upon a particular notion of defendant-focused fairness. Id, at 291, 297, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (internal quotation marks omitted). A rule like the New Jersey Supreme Court's would permit every State to assert jurisdiction in a products-liability suit against any domestic manufacturer who sells its products (made anywhere in the United States) to a national distributor, no matter how large or small the manufacturer, no matter how distant the forum, and no matter how few the number of items that end up in the particular forum at issue. *14 131 S.Ct. at 2793. Thus, a majority of the Supreme Court in J McIntyre rejected a stream of commerce approach that dispenses with examining and weighing the defendant's contacts with the forum' and that imposes personal jurisdiction on no more than the defendant's use of a national distributor who happens to direct product of any quantity to the forum'. In discerning and applying a viable holding from J. McIntyre, the courts have looked to the opinion of Justice Breyer: J. McIntyre was a fragmented decision and no opinion enjoyed the assent of five Justices. Therefore, courts have considered Justice Breyer's concurring opinion as the holding because he concurred in the judgment on only the narrowest of grounds. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds "); United States v. Robison, 505 F.3d 1208, 1221 (11th Cir.2007) (quoting Marks, 430 U.S. at 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (same)). Hatton v. Chrysler Canada, Inc., 937 F.Supp.2d 1356, Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 18 of 46 PageID: 1427 WESILAW 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 1366 (M.D.FIa.2013); see Ainsworth v. Moffett Engineering, Ltd, 716 F.3d 174 (5th Cir.), cert. denied, - U.S. -, 134 S.Ct. 644, 187 L.Ed.2d 420 (2013); Monje v. Spin Master Inc., 2013 WL 2369888, at *5 (D.Ariz. May 29, 2013). While Justice Breyer's opinion still allows for the differing approaches in Asahi, he did retain and emphasize that the constitutional analysis of minimum contacts "rests upon a particular notion of defendant-focused fairness." 131 S.Ct. at 2793; see Grimes v. Cirrus Industries, Inc., 712 F.Supp.2d 1256, 1261-62 (W.D.Okla.2010) (Discussed Tenth Circuit's stream of commerce approach as more restrictive than other circuits and as based on more than just the likelihood of the product reaching the forum). After J. McIntyre, the courts applying the stream of commerce approach have focused on such "contact" factors as the defendant's direction or control over the flow of the product into the forum, the quantity of the defendant's particular product regularly flowing into the forum, and the distinctive features of the forum that connect it with the product in question. See, e.g., Ainsworth v. Moffett Engineering, Ltd, 716 F.3d at 179 (Found personal jurisdiction where the defendant foreign manufacturer of a forklift for poultry-related uses had "exclusive sales and distribution agreement" with company who sold in all 50 states, including the forum, quantity of forum sales over last ten years was less than 2 % , bu t t h e f o r um w a s t h e f o u r t h - l a r ge s t poultry-producing state); Echard v. Townsend Farms Incorporated, -F.Supp.2d -, 2014 WL 243141 at *3 (D.Ariz.2014) (Found no personal jurisdiction where foreign seller of product had only a couple customers in the forum and its sales there were less than 1%, and there was no "something more" connection to the forum); Crowell v. Analytic Biosurgical Solutions, 2013 WL 3894999 (S.D.W.Va. JU1.26, 2013) (Found no personal jurisdiction where foreign manufacturer supplied product to another entity that chose the markets, including the United States, and the manufacturer had no involvement or control over distributor and there was nothing but the possibility that the product "might" be sold in the forum); Alphagen Biotech v. Langoost Enterprises, LLC, 2013 WL 2389792 at *7 (D.Utah May 30, 2013) (Found no personal jurisdiction where defendant manufacturer had no control over distributors and no exclusive distributor in forum, forum sales were less than 2% or "minimal, and there was "nothing to suggest" that the defendant purposefully availed itself of the forum); Monje v. Spin Master Inc., 2013 WL 2369888 (D.Ariz. May 29, 2013) (Found personal jurisdiction where foreign seller had 4.2 million toy sets sold across the United States by its distributor, retained control over distribution shipments, advertised in forum, solicited forum customers through its own website, and responded directly to consumer complaints). Looking at these cases and others, it is evident the courts have evaluated the factors as being interrelated with the greater weight of one factor influencing the impact from deficiencies with the other factors.' *15 The plaintiffs regard the stream of commerce theory as "alive and well" and as a viable "means of exercising personal jurisdiction so long as the defendant's actions (and not the unilateral actions of others) seek to serve the forum state." (Dk.39, p. 14) (footnote omitted). Citing the difference between the alleged multiple tire sales in Kansas and the few scrap metal machine sales in New Jersey, as discussed in J. McIntyre, the plaintiffs say the defendants should draw "no solace" from arguing that the Supreme Court's recent decision narrowed the stream of commerce theory. The plaintiffs cite Pirelli Group's growing tire sales in North America and its building of tire plants in Mexico as "not only actively seeking out but also achieving a larger piece of the North American market-share, which inherently includes the market-share in the United States and the State of Kansas." (Dk.39, p. 15). From this, the plaintiffs conclude that the Pirelli Group, in particular the moving defendants have "purposefully availed" themselves of personal jurisdiction in this forum. Besides the tire sales in North America, the plaintiffs argue the defendants are subject to personal jurisdiction because of having "a sophisticated global distribution system" for selling tires across the United States and in Kansas by going "through a sole and exclusive distributor, [LeMans d/b/a] Parts Unlimited." Id. They assert that relationship between the Pirelli Group and Parts Unlimited "is exactly the type of conduct ... to evidence a corporation's purposeful attempt to serve the market in this state as opposed to merely placing a product in the stream of commerce." Id. at p. 16. The plaintiffs opine that the J. McIntyre Court would find a "deliberate connection" based on "sheer volume of business in terms of dollars." Id. In support of their arguments, the plaintiffs cite the unpublished decision of Garrard v. Pirelli Tire, LLC, 2012 WL 2357406 (S.D.Ill. Jun.20, 2012). The court there denied a challenge to personal jurisdiction brought by Pirelli Deutschland GMBH ("Pirelli DG"), the German manufacturer of a Metzeler motorcycle tire sold to Yamaha Motor Co. Ltd. Installed on a Yamaha Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 19 of 46 PageID: 1428 WEST LAW © 2016 Thomson Reuters. No claim to original U.S. Government Works, 12 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 motorcycle, the tire then was shipped to the United States. The district court made the following findings from the record: Pirelli DG participates in a sophisticated global distribution system that allows its tires to be sold all over the globe. The sole distributor in the United States of Pirelli DG's Metzeler brand tire is Parts Unlimited LLC. The Metzeler tires are sold in countless states including the State of Illinois. Pirelli DG knew of this global distribution network and that the Metzeler would be sold on the American market. Garrard, 2012 WL 2357406 at *2 (record citations omitted). The court relied on this stream of commerce approach: "A defendant will have the requisite minimum contacts with the forum State when the defendant `delivers products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.' World-Wide Volkswagen Corp., 444 U.S. at 298." 2012 WL 2357406 at *2. Emphasizing that the defendant could expect its product to reach Illinois, the court concluded: *16 Here, Pirelli DG placed the Metzeler tire into the stream of commerce through a sophisticated global distribution system. It is clear Pirelli DG expects its Metzeler tires to be purchased in the American market. Accordingly, Pirelli DG must expect its Metzler tires will purchased in Illinois, one of the five largest states in the Nation. The Court finds that the exercise of jurisdiction over Pirelli DG does not offend the Due Process Clause of the Fourteenth Amendment. Id (census citation omitted). The plaintiffs consider the holding in Garrard to be the inescapable conclusion here. There are several reasons, however, for limiting the precedential value of Garrard. The decision does not provide a meaningful discussion of the facts or reasoning behind its conclusion of a "sophisticated global distribution system" that extends even to the independent distributor Parts Unlimited. There are no specific findings on what direction or control, if any, that Pirelli exercised over Parts Unlimited's distribution of motorcycle tires. Instead of looking at Pirelli DG's contacts and efforts directed at Illinois, the Garrard decision attaches primary significance principally to Pirelli DG's knowledge of United States' sales through a nationwide distributor. As far as making any connection to the Illinois forum, the court in Garrard said it was enough that Illinois is one of the five largest states in population and that "Pirelli DG must expect its Metzeler tires will be purchased in Illinois." 2012 WL 2357406 at *2. The ruling in Garrard would conflict with J. McIntyre except for it keying on the quantity of sales presumed from a nationwide distribution system and from the population of Illinois. With the population of Kansas in the bottom third of all states, Garrard's presumption on sales is not equally applicable here, and its weighting of this factor is certainly not the inescapable conclusion either. In asserting personal jurisdiction over the foreign parent corporations, Pirelli & C and Pirelli Tyre, the plaintiffs cite the decision of Cardenas v. Dorel Juvenile Group, Inc., 358 F.Supp.2d 1042 (D.Kan.2005). This decision offers little in analysis that bears on the issues here. The parties and the court in Cardenas presumed that a manufacturer who directly sends a defective product to the forum state would be subject to personal jurisdiction. The principal question was whether the foreign parent corporation was a "manufacturer" for purposes of the state long-arm jurisdiction. The court found it enough for a prima facie case that the foreign corporation had represented itself to the public as the manufacturer. 358 F.Supp.2d at 1047-48. The narrow grounds of this decision are revealed in the following: The court recognizes that many of the references DI makes to itself as a manufacturer are gener i c references, not necessarily specific to the subject child safety seat. The evidence for asserting jurisdiction over DI is not compelling. But the court finds it substantial enough to infer that DI is a manufacturer at this stage of the litigation. By h o l d i n g i t s e l f o u t a s a manufacturer, DI has engaged in minimum contacts with state of Kansas. *17 358 F.Supp.2d at 1048. Alleging Pirelli & C and Pirelli Tyre to sit atop a sophisticated global distribution Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 20 of 46 PageID: 1429 lAi'EST LAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 network, to exercise some unspecified control, to own some patents, and to perform some risk management is something quite different from Pirelli & C and Pirelli Tyre representing themselves to the public as the manufacturers of motorcycle tires. The plaintiffs fail to present the facts relevant for applying the holding of Cardenas here. Before analyzing the factors underlying the minimum contact analysis, the court needs to revisit the plaintiffs' allegations of the moving defendants having an agency relationship with LeMans. Citing Rosenzweig's deposition, the plaintiffs have evidence that LeMans is Pirelli Tire, LLC's only American customer for Metzeler Motorcycle tires. The plaintiffs, however, fail to cite the balance of Rosenzweig's testimony on this topic in which he describes LeMans as being only a customer of Pirelli Tire, LLC and as having no other affiliation with a Pirelli entity. (Dk.38-4, p. 77). Rosenzweig also testified that LeMans closely guards its tire distribution plans and its customer information and does not disclose the same to Pirelli Tire, LLC. Id at 78. Nonetheless, Pirelli Tire, LLC, generally understands that LeMans sells tires to Parts Unlimited dealerships around the country. Id. at 79. The plaintiffs also offer evidence of LeMans d/b/a Parts Unlimited advertising itself as the "World's Largest Distributor of Powersports Aftermarket Parts and Accessories." (Dk.38-6, p. 1). As part of the record, the plaintiffs have attached as exhibits some printed documents evidencing that Parts Unlimited maintains a website, sells an extensive line of products with many different brands, and markets its sales through at least eight different catalogs. The website does have a dealer locator tool which assists consumers in finding dealers who carry products distributed by Parts Unlimited. In their conclusory allegations surrounding the Pirelli Group and its use of a "sophisticated global distribution system," the plaintiffs speculate that Parts Unlimited is "a sole and exclusive distributor," and "acts as sales agent for the Pirelli Group and markets their products on its [Parts Unlimited's] website." (Dk.40, p. 15). The plaintiffs go so far as to describe this as "exactly the type of conduct contemplated by Justice O'Connor in Asahi. Id. at 16. The court does not take as true the plaintiff's allegations of Parts Unlimited being an exclusive distributor by contract and a sales agent for the Pirelli group, for they are not well pled but rather are conclusory and speculative. Moreover, the defendants' affidavits and the Rosenzweig's deposition contradict the plaintiffs' allegations. The facts establish that the customer LeMans places the tire order with Pirelli Tire LLC. LeMans arranges through an international freight service for the tires to be shipped from Brazil to the United States and receives an invoice from Pirelli Tire LLC. LeMans unilaterally decides when and where to distribute these tires in the United States, and the tire manufacturer does not exercise any control, direction, or influence on these distribution decisions or on LeMans' advertising or sales efforts. *18 Nor do the Supreme Court decisions support the plaintiffs' conclusion that LeMans' involvement here matches what Justice O'Connor was describing in Asahi. Among the possible "additional conduct" indicative of "an intent or purpose to serve" the forum state, Justice O'Connor wrote, "marketing the product through a distributor who has agreed to serve as the sales agent in the forum state." 480 U.S. at 112. There is no evidence that the moving defendants intended to "market" the tires through LeMans and that LeMans had "agreed to serve as the sales agent" in Kansas. Instead, LeMans business activities more closely resemble the distributor arrangement rejected in J. McIntyre which was "an independent company" distributing the product in the United States but not under the foreign manufacturer's control. The majority of the court rejected this as a sufficient contact even though the distributor in McIntyre had agreed to sell the machines in the United States. Thus, LeMans' involvement is even more remote than that rejected in J. McIntyre. The court's research shows that nationwide sales through LeMans d/b/a Parts Unlimited, an independent company, are not a strong factor supporting the exercise of personal jurisdiction in Kansas. There is no evidence of the moving defendants shipping any product directly to this forum. LeMans takes delivery of the tires in Brazil, arranges for the shipping, and markets the tires around the United States without the input, direction or control of the moving defendants. Under similar facts, one court wrote that the forum contacts resulted from "setting its products adrift, which is not enough for this court to exercise personal jurisdiction." Crowell v. Analytic Biosurgical Solutions, 2013 WL 3894999 at *5 (S.D.W.Va. Jul.26, 2013). There is no evidence of "close relationship between manufacturer and distributor." See Allstate Insurance Company v. Interline Brands, Inc., 2014 WL 462814, at 6 (N.D.Tex. Feb.5, 2014); see, e.g. Alphagen v. Biotech v. Langoost Enterprises, LLC, 2013 WL 2389792 at *6-*7 (D.Utah May 20, 2013) (No purposeful availment from limited forum sales made by independent distributors that included wholesalers, e-tailers and Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 21 of 46 PageID: 1430 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 retailers, because "these distributors are entirely separate from Defendant and that it does not control where, when, or how these distributors sell their products, or which customers they target."); Grimes v. Cirrus Industries, Inc., 712 F.Supp.2d 1256, 1262 (W.D.Okla.2010) (Specific jurisdiction existed with a distributorship agreement that contained sales quotas for the forum and resulted in regular and ongoing sales within the forum). There is not "something more" to be found in a foreign manufacturer simply sending some product to a company who then ships the product to another company who then retails the product in the forum. Echard v. Townsend Farms Incorporated, - F.Supp.2d , 2014 WL 243141 at *3 (D.Ariz.2014). This is not a situation as in Hatton v. Chrysler Canada, Inc., 937 F.Supp.2d 1356, 1362 (M.D.Fla.2013), which involved the defendant Chrysler Canada, the foreign manufacturer, who sold the assembled Chrysler 300M car to Chrysler United States who then distributed these cars to dealers, including Chrysler dealers in the forum of Florida, where thousands of these cars were sold, where the defendant had "billions of dollars in monetary benefit," and where it maintained some business contact with the dealers including warranty coverage. Nor is this a situation of "a foreign manufacturer that pours its products into a regional distributor with the expectation that the distributor will penetrate a discrete, multi-State trade area." Viasystems, Inc. v. EBM-Papst St. Georgen GMBH & Co., KG, 646 F.3d 589, 597 (8th Cir.2011) (internal quotation marks and citations omitted). *19 The plaintiffs point to Metzeler's website (www.metzeler.com/site/us) and its dealer locator tool "that does not seem to produce results for the United States." (Dk.40, p. 6). The court's review of the website revealed dealers for cities in such states like California, Florida, Texas and Illinois, but the locator did not yield any dealers for the major cities and towns in Kansas. Additionally, the website's operation reveals the speculative nature of the plaintiffs' allegations that Parts Unlimited is the exclusive United States distributor/dealer of Metzeler tires. From Metzeler's website's legal information page, the plaintiffs quote (www.me tzeler.com/site/us/about-us/legal-info.html) that it "is an on-line information and communications service provided by Pirelli Tyre S.p.A." A website accessible by forum residents does not subject the defendant website owner to personal jurisdiction, for there must be something more showing the defendant to have aimed "its message at an audience in the forum state." Shrader v. Biddinger, 633 F.3d 1235, 1241 (10th Cir.2011). The Metzeler website does not allow for direct sales and apparently does not identify any Kansas dealers of its products. See Parah, LLC v. G' Strat LLC, 2014 WL 545871 at *4-*5 (D.Utah Feb.10, 2014). The plaintiffs come forward with no arguments or evidence linking the sale of Metzeler tires in Kansas to any unique marketing efforts or distribution agreements aimed at this state or to any distinct activities occurring here or to specific features within this forum. Consequently, these defendant-focused contacts do not show the moving defendants purposefully availed themselves of the privilege of doing business in Kansas. As for the factors relevant for minimum contacts under the stream of commerce approach, the above analysis shows that the moving defendants exercise no direction, influence or control over the flow of product into this forum and that there are no distinctive features of Kansas that connect it with the product in question. This leaves the remaining factor on the quantity of the defendant's particular product regularly flowing into the Kansas. The moving defendants have made no direct sales to Kansas and have no direct contacts with anyone marketing or selling the tires in Kansas. See Otter Products, LLC v. Seal Shield, LLC, 2014 WL 1213475 at *3 (D.Colo. Mar.24, 2014) (direct sales and marketing in forum). There is no allegation or evidence that any of the moving defendants' subsidiaries made direct sales of motorcycle tires in Kansas. The plaintiffs do not present anything about sales of Metzeler motorcycle tires in the United States and particularly in Kansas. The plaintiffs have evidence of general tire sales from Pirelli & C's annual financial reports regarding total net sales for all Pirelli products recorded for NAFTA countries, including the United States. As for evidence of motorcycle tire sales in Kansas, the plaintiffs point to their Kansas purchase in 2010 and then presume sales based on the presence of independent Parts Unlimited dealers in Kansas. The plaintiffs' case establishes one Metzeler tire sale and little more than the possibility of other sales. There is nothing of record indicating the extent to which Metzeler tires flowed into Kansas and were sold here. *20 In conclusion, none of the "contact" factors in the stream of commerce approach, individually or in combination, satisfy the constitutional analysis of minimum contacts and purposeful availment, "each of which rest upon a particular notion of defendant-focused fairness." J. McIntyre, 131 S.Ct. at 2793 (J. Breyer, concurring). Justice Kennedy writing for the plurality in J. McIntyre also affirmed the due process restraints on the stream of commerce approach: [T]he stream-of-commerce metaphor cannot supersede Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 22 of 46 PageID: 1431 WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (20'l4) 2014 WL 1883791 either the mandate of the Due Process Clause or the limits on judicial authority that Clause ensures. The New Jersey Supreme Court also cited "significant policy reasons" to justify its holding, including the State's "strong interest in protecting its citizens from defective products." Id, at 75, 987 A.2d, at 590. That interest is doubtless strong, but the Constitution commands restraint before discarding liberty in the name of expediency. Due process protects petitioner's right to be subject only to lawful authority. At no time did petitioner engage in any activities in New Jersey that reveal an intent to invoke or benefit from the protection of its laws, New Jersey is without power to adjudge the rights and liabilities of J. McIntyre, and its exercise of jurisdiction would violate due process. 131 S.Ct. at 2791. To exercise specific personal jurisdiction on the facts here, the court would have to ignore all notions of "defendant-focused fairness" and follow the New Jersey approach rejected in J. McIntyre. The plaintiffs have not made a prima facie showing of personal jurisdiction over the moving defendants. The plaintiffs alternatively make a blanket request to conduct discovery prior to the court's ruling. The plaintiffs state that, "[d]iscovery should be conducted on a limited basis into whether, among other issues, certain of the Asahi Metal additional factors constituting purposeful availment have been met." (Dk.40, p. 27). "When a defendant moves to dismiss for lack of jurisdiction, either party should be allowed discovery on the factual issues raised by that motion. The trial court, however, is vested with broad discretion and should not be reversed unless discretion is abused." Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1035 (10th Cir.1975). The district court has much discretion in handling jurisdictional discovery matters. Breakthrough Management v. Chukchansi Gold Casino, 629 F.3d 1173, 1189 (10th Cir.2010). "[T]he burden of demonstrating a legal entitlement to jurisdictional discovery-and the related prejudice flowing from the discovery's denial-[is] on the party seeking the discovery...." Breakthrough Management, 629 F.3d at 1189 n. 11. "[A] refusal to grant discovery constitutes an abuse of discretion if the denial results in prejudice to a litigant. Prejudice is present where `pertinent facts bearing on the question of jurisdiction are controverted ... or where a more satisfactory showing of Footnotes the facts is necessary." Sizova v. Nat. Institute of Standards & Technology, 282 F.3d 1320, 1326 (10th Cir.2002) (internal quotation marks and citations omitted). The district court does not abuse its discretion by denying jurisdictional discovery where there is a "very low probability that the lack of discovery affected the outcome of this case." Bell Helicopter Textron, Inc. v. Heliqwest Intern., Ltd., 385 F.3d 1291, 1299 (10th Cir.2004). *21 The magistrate judge recently granted the moving defendants' unopposed motion to stay discovery and continue the scheduling conference pending a decision on the pending motions to dismiss. (Dk.55). The plaintiffs apparently chose not to pursue any jurisdictional discovery during the pendency of these motions. Before filing their response to the motions to dismiss, the plaintiffs did access the deposition of Rosenzweig that apparently was part of the discovery taken for jurisdictional purposes in the Garrard case. The plaintiffs' responses fail in their burden to prove a need for additional discovery and prejudice without it. They do not specify what additional facts are jurisdictionally relevant to the court's determination. See Breakthrough Management, 629 F.3d at 1190. A hunch or a hope that there may be more to the relationship between LeMans and a Pirelli entity is not enough. Id. (district court did not abuse discretion in denying a discovery request "based on little more than a hunch"). The plaintiffs' allegations and arguments lack plausible grounds for thinking that discovery of Kansas sales of Metzeler tires will probably result in a significant factor affecting the court's determination. The plaintiffs have not carried their burden as to justify suspending the court's ruling for jurisdictional discovery. IT IS THEREFORE ORDERED that the motions to dismiss for lack of personal jurisdiction filed by the defendants, Pirelli & C. S.p.A., (Dk.30); Pirelli Pneus Ltda ("Pirelli Pneus"), (Dk.32); Pirelli Tyre S.P. A. ("Pirella Tyre"), (Dk.34) are granted. All Citations Not Reported in F.Supp.2d, 2014 WL 1883791 Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 23 of 46 PageID: 1432 VVESTLAVV 0 2016 Thomson Reuters. No claim to original U.S. Government Works. Eaves v. Pirelli Tire, LLC, Not Reported in F.Supp.2d (2014) 2014 WL 1883791 1 The above caption does not include the two defendants dismissed without prejudice in January of 2014. (Dk.47). 2 This is the Rule 30(b)(6) deposition of Alexander Rosenzweig, in-house counsel with Pirelli North America, Inc., taken May 11, 2012, in the case of Garrard v. Pirelila Tire, LLC, et al., No. 11-00824, that was filed in the United States District Court for the Southern District of Illinois. The defendants raise several objections to the use of this deposition and to the extent of this witness's personal knowledge on certain corporate practices and business activities. 3 Rosenzweig testified that Pirelli Tire LLC doesn't "know what LeMans does in terms of selling Metzeler tires after they buy them from us. This is very closely guarded information by LeMans." (Dk.102-3, p. 78). 4 These three affidavits will be referred to hereafter as the business affidavits. 5 " 'Appropriate parental involvement includes "monitoring of the subsidiary's performance, supervision of the subsidiary's finance and capital budget decisions, and articulation of general policies and procedures." " 344 F.Supp.2d at 691 (quoting Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir.2001) (quoting in turn United States v. Bestfoods, 524 U.S. 51, 72, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998)), "'An alter ego or agency relationship is typified by parental control of the subsidiary's internal affairs or daily operations.' " Id. (quoting Unocal Corp., 248 F.3d at 926). And "whether, in the truest sense, the subsidiary's presence substitutes for the presence of the parent." Id. (quoting Unocal Corp., 248 F.3d at 928-29) 6 The plurality noted that, "it is the defendant's actions, not his expectations, that empower a State's courts to subject him to judgment." 131 S.Ct. at 2789. 7 The plurality wrote that, "transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum." 131 S.Ct. at 2788. 8 See Alan G. Schwartz and Kevin M. Smith, Wading Through the Stream of Commerce: When can Foreign Manufacturers Expect to be Subject to Specific Jurisdiction in United States Courts? 80 Def. Couns. J. 349, 356 (Oct.2013). End of Document 0 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 24 of 46 PageID: 1433 In re Plavix Related Cases, 2014 WL 3928240 (2014) WESTLAW 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 MI KeyCite Red Flag - Severe Negative Treatment Declined to Follow by M.M, ex rel. Meyers v. GlaxoSmithKline LLC, Ill.App. 1 Dist., August 26, 2016 2014 WL 392824o (Ill.Cir.Ct.) (Trial Order) Circuit Court of Illinois. Illinois County Department, Law Division Cook County In re: PLAVIX RELATED CASES APPLICABLE TO ALL COOK COUNTY CASES. No. 2012L5688. August 11, 2014. West Headnotes (1) 11] Courts'Defective, dangerous, or injurious products; products liability Illinois had specific jurisdiction over manufacturer of prescription drug used to prevent blood clots that was headquartered out of state in product liability action by patients who took it, where manufacturer had previously employed Illinois residents, maintained office space in Illinois, sold the drug to Illinois residents, and derived 2.56% of its total United States sales revenue from all product lines from sales in Illinois. Cases that cite this headnote Order Deborah Mary Dooling, Judge. *1 This matter comes on the call on Bristol-Meyers Squibb Company, Sanofi-Aventis U.S. LLC, Sanofi US Services, Inc., and Sanofi-Synthelabo, Inc.'s ("Defendants") Omnibus Motion to Dismiss Non-Illinois Plaintiffs on Forum Non Conveniens Grounds and Motion to Dismiss Pursuant to 735 5/2-301 for Lack of Personal Jurisdiction ("Defendants Motion"). The matter has been fully briefed and the Court heard argument on June 18, 2014. The parties were allowed to submit supplemental authority until July 25, 2014. On July 30, 2014, Plaintiffs submitted a letter with additional authority. On July 31, 2014, Defendants submitted a letter with additional authority in response to Plaintiffs' July 30, 2014 submission. The Court has considered all materials submitted by the parties. L BACKGROUND AND FACTUAL ALLEGATIONS Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 25 of 46 PageID: 1434 In re Plavix Related Cases, 2014 WE_ 3928240 (2014) WESTJ..AW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 The Plaintiffs in this coordinated proceeding are 502 individuals who ingested Plavix, a prescription drug used to prevent blood clots. Plaintiffs claim they suffered bleeding injuries as a result of using Plavix. Sixteen Plaintiffs are Illinois residents ("Illinois Plaintiffs"). 486 Plaintiffs are residents of states other than Illinois. Defendants' Motion has been brought only with respect to the 486 non-Illinois Plaintiffs ("Plaintiffs" or "non-Illinois Plaintiffs"), Neither party disputes the other side's recitation of facts as presented to the Court in each party's briefing, supporting exhibits, affidavits. Accordingly, the Court has considered all information provided by the parties. The Court finds the following pertinent facts. Defendants are pharmaceutical companies involved in the design, manufacture, and sale of Plavix. Defendants have generated $1,782,812,455.30 in Plavix sales in Illinois from 1996 to 2013. Illinois is not Defendants' place of incorporation or principal place of business. One of the Defendants, Bristol-Meyers Squibb Company ("BMS"), is headquartered in New York, New York. BMS has operating facilities and research and development sites in New Jersey. BMS maintained a sales office in Lisle, Illinois, until January 2013. The office employed ten people. A BMS affiliate, Mead Johnson Nutrition, maintained an office in Illinois which was closed in 2007. BMS' work relating to the development, marketing, and regulatory approval of Plavix took place at its facilities in New York and New Jersey. No part of the work relating to the development or manufacture of Plavix took place in Illinois. BMS derived 2.56% of its U.S. sales revenue from Illinois from November 2010 to November 2011. Three of the other Defendants, Sanofi-Aventis U.S. LLC, Sanofi US Services, Inc., and Sanofi-Synthelabo, Inc., are headquartered in Bridgewater, New Jersey (these companies will be referred to collectively as "Sanofi")- As of January 29, 2013, Sanofi had approximately 2,086 employees working in New Jersey, accounting for 35% of its U.S. workforce. Over the same time period, two percent of Sanofi's employees worked in Illinois. Sanofi also maintains a research and development facility in New Jersey. Sanofi does not maintain any bank accounts in Illinois, and it does not have any research, manufacturing, or packaging facilities in Illinois. Sanofi operated a distribution facility in Des Plaines, Illinois, until 2007. Neither party has provided the Court with information regarding Sanofi's revenue attributable to the distribution and sale of Plavix. II. FORUM NON CONVENIENS A. Law *2 The doctrine of forum non conveniens "allows a court to decline jurisdiction of a case, even though it may have proper jurisdiction over the subject matter and the parties, if it appears that another forum can better serve the convenience of the parties and the ends of justice." Fennell v. M. Cent. R.R. Co., 987 N.E.2d 355, 359 (2012). "The defendant bears the burden of showing that the plaintiff's chosen forum is inconvenient to the defendant and another forum is more convenient to all parties." Id. at 361. The forum non conveniens analysis proceeds in three steps. The first step requires courts to ensure that there is an adequate alternative forum for the litigation. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336 (1994). The forum non conveniens doctrine presupposes that an adequate alternative forum exists. Id. Accordingly, the existence of an alternative forum is a threshold requirement in the forum non conveniens analysis. Stroitelstvo Bulg. Ltd. v. Bulgarian American Enter. Fund, 589 F.3d 417, 424 (7th Cir. 2009). The alternative forum must be "adequate" and "available." Id. at 421. Adequacy requires that the forum offer the plaintiff the opportunity for a "fair hearing to obtain some remedy for the alleged wrong." Id. Availability requires that the parties be amenable to process and jurisdiction in the forum. Id. The second step requires courts to determine the level of deference to be afforded the plaintiff's decision to litigate in the particular forum. Fennell, 987 N.E.2d at 360. "When a plaintiff chooses her home forum or the site of the accident or injury, it is reasonable to assume that the choice of forum is convenient." Id. In those cases, the plaintiff's forum is entitled to substantial deference. Id. "However, when the plaintiff is foreign to the chosen forum and when the action giving rise to the litigation did not occur in the chosen forum, the plaintiffs choice of forum is accorded less deference." Id. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 26 of 46 PageID: 1435 In re Plavix Related Cases, 2014 WL 3928240 (2014) WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works, 3 Third, courts must consider private interest factors affecting the litigants and public interest factors affecting the court and public more generally. Id. at 359. The forum non conveniens analysis is intended to be flexible, and so no factor should be given dispositive weight. Id. Instead, to determine whether dismissal or transfer is appropriate, the court should "balance the public and private interest factors." Id. "The court does not," however, "weigh the private interest factors against the public interest factors. Rather, the court must evaluate the total circumstances of the case in determining whether the balance of factors strongly favors dismissal." Id. B. Analysis The first step in the forum non conveniens analysis is to determine whether an adequate alternative forum exists. Defendants have proposed litigating Plaintiffs' claims in federal court in New Jersey. Plaintiffs do not suggest that the District of New Jersey is inadequate forum, nor do they suggest that the District of New Jersey is an unavailable forum. The Court finds that the District of New Jersey is an adequate alternative forum. The second step in the forum non conveniens analysis is to determine what amount of deference the plaintiffs choice of forum deserves. Defendants accuse Plaintiffs of forum shopping and argue that Plaintiffs' decision to litigate in Illinois is entitled to less deference because Plaintiffs are not Illinois residents and their claims did not arise from conduct occurring in Illinois. Plaintiffs, in turn, argue that their decision to litigate in Illinois is entitled to full deference because "Illinois is the site of a substantial portion of the acts that directly led to the Plaintiffs' injuries." *3 In Fennell, a Mississippi resident brought suit against his employer, a railway, alleging that he was exposed to asbestos at work. The plaintiff originally filed his lawsuit in Mississippi state court, but that lawsuit was dismissed without prejudice. Rather than refile in Mississippi, however, the plaintiff refiled in St. Clair County, Illinois. The plaintiffs only connection to Illinois was that he attended engineer school in Homewood, Illinois. The Court held that plaintiff s decision to litigate in Illinois was entitled to reduced deference because "plaintiff does not reside in Illinois, and the cause of action did not arise in Illinois." Id. at 361-62. Like Fennell, the present case is devoid of any meaningful factual connection to Illinois. First, Plaintiffs are not Illinois residents. Second, although Plaintiffs attempt to argue that Defendants engaged in conduct in Illinois which caused injury to Plaintiffs, Plaintiffs never articulate what those actions were. Moreover, Plaintiffs concede in their brief that their claims did not arise in Illinois. Accordingly, the Court finds that Plaintiffs' decision to litigate in Illinois is entitled to reduced deference. That does not mean, however, that Plaintiffs' decision receives no deference. Plaintiffs' decision to litigate in Illinois is still entitled to some deference. First Nat'l Bank v. Guerine, 198 Ill. 2d 511, 518 (2002). Finally, the Court must consider the private and public interest factors. The first private interest factor asks courts to consider the convenience of the parties. Although Defendants strenuously argue that Illinois is an inconvenient forum to litigate Plaintiffs' claims, Defendants will nonetheless be litigating claims brought by sixteen Illinois Plaintiffs in this very Court. Defendants do not explain why it is convenient for large pharmaceutical corporations headquartered in New York and New Jersey to litigate Plavix claims brought by Illinois claimants in Illinois state court, but simultaneously inconvenient to litigate identical claims brought by non-Illinois residents in Illinois state court. This factor strongly favors Plaintiffs. Another private interest factor asks courts to consider how easy it is to gain access to evidence, including documentary evidence. Defendants argue that documentary evidence relating to Plaintiffs' claims will be located in both Plaintiffs' and Defendants' home states. Plaintiffs argue access to documentary evidence is a virtual non-factor given the advent of email and other electronic communication mediums. The Court is unmoved by the notion that the location of documentary evidence somehow sways the outcome here. Courts have long held that the physical location of documentary evidence is insignificant because "documents can be transported with ease and little expense. Japax, Inc. v. Sodick Co., 186 Ill. App. 3d 656, 667 (1st Dist. 1989). "[T]he location of documents, records and photographs has become a less significant factor in forum non conveniens analysis in the modern age of email, Internet, telefax, copying machines and worldwide delivery services, since they can now be easily copied and sent." Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 27 of 46 PageID: 1436 In re Plavix Related Cases, 2014 WL 3928240 (2014) *5 The last public interest factor asks courts to consider the administrative burden on the court system. The parties have VVESTLAVV 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Dowd y. Berndtson, 983 N.E.2d 34, 43 (1st Dist. 2012), Plaintiffs claim, and Defendants do not dispute, that the documentary evidence which will be presented in this case exists in electronic form, and thus may be easily accessed nationwide. Based on the foregoing, the Court finds that the second private interest factor favors Plaintiffs. The next private interest factor asks courts to consider the availability of compulsory process to secure attendance of unwilling witnesses. Defendants do not identify a single witness who is unwilling to testify at trial. Instead, Defendants ask this Court to assume that Plaintiffs' treating physicians will be unavailable to testify at trial. Defendants, however, cannot sustain their heavy burden of proof by pointing to hypothetical inconveniences of hypothetical witnesses. And in any event, the more reasonable assumption is that Plaintiffs will call their treating physicians to testify. Furthermore, even if Plaintiffs do not call their treating physicians to testify, the parties may procure testimony from witnesses unwilling or unable to travel to Illinois by way of evidence deposition, See Fennell, 987 N.E.2d at 368. Accordingly, the third private interest factor favors Plaintiffs. *4 The next private interest factor asks courts to consider the cost to obtain attendance of willing witnesses. Defendants cite Kourdoglanian v. Yannoulis, where the court stated "[t]he cost and inconvenience of bringing the parties to Illinois to litigate this claim must be considered paramount." 227 III. App. 3d 898, 901 (1st Dist. 1992). Defendants' argument is not persuasive. Defendants' argument is purely hypothetical. Defendants claim travel to Illinois would be burdensome on "these individual witnesses" who travel to Illinois, but Defendants nowhere identify who "these" witnesses are. Moreover, Kourdoglanian is inapposite. In that case, the potential burden of traveling to Illinois was "paramount" because the plaintiff and defendant were from Greece and Switzerland, respectively. Id. Here, by contrast, Plaintiffs and Defendants are all located in the United States. Accordingly, the fourth private interest factor favors Plaintiffs. Yet another private interest asks courts to consider the possibility of viewing the premises, if appropriate. Neither party contends this factor has applicability in the present case. The Court accordingly declines to consider this factor, as it has no relevance to the present dispute. The last private interest factor asks courts to consider other factors which make trial easy, expeditious, and inexpensive. Defendants point out that there is currently a federal multidistrict litigation concerning Plavix taking place in New Jersey. The existence of an adequate alternative forum is, however, a threshold consideration. If no alternative forum exists, then forum non conveniens dismissal is not appropriate. Accordingly, the Court will not consider the federal multidistrict litigation when balancing the private and public interest factors. Therefore, the sixth private interest factor favors neither party. Turning to the public interest factors, courts must consider the interest in having local controversies decided locally. Defendants argue that Illinois does not have an interest in the present litigation because Plaintiffs' injuries occurred in other states. Plaintiffs contend that, in products liability cases such as this, the local interest factor is replaced by a general interest in product safety. In Erwin v. Motorola, Inc., 408 Ill. App. 3d 261 (1st Dist. 2011, the plaintiffs were harmed when they were exposed to chemicals while working in "clean rooms" at Motorola facilities in Texas and Arizona. Id. at 262. Motorola also operated similar "clean rooms" in Illinois around the time that the plaintiffs alleged they were injured in Texas and Arizona. Id. at 282-83. The court held that "[u]nder these circumstances, we cannot conclude that Illinois has no interest in litigating a controversy that has had an impact on its citizens." Here, while Plaintiffs were allegedly injured by Plavix outside Illinois, Illinois residents are also claiming that they suffered injuries relating to their use of Plavix. Accordingly, Illinois has an interest in litigating Plaintiffs' claims. However, because Defendants are not Illinois residents and did not manufacture Plavix in Illinois, Illinois' interest in this litigation, while identifiable, is not strong. See Id. Accordingly, the first public interest factor slightly favors Plaintiffs. The next public interest factor asks courts to consider the unfairness of imposing jury duty upon residents of a community with no connection to the litigation. Although Illinois has a generalized interest in this litigation because Defendants distributed Plavix in Illinois, it is possible that a non-Illinois plaintiff's case will be selected for trial. In that case, Illinois jurors will be forced to decide a dispute involving a non-Illinois resident injured somewhere other than Illinois. That would not be a reasonable use of the jury's time. Accordingly, the second public interest factor favors Defendants. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 28 of 46 PageID: 1437 In re Plavix Related Cases, 2014 WL 3928240 (2014) WESTLAVV © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 briefed this factor by focusing on the possibility that this Court may need to apply foreign law to Plaintiffs' claims. The Court is capable of deciding which law to apply and instruct the jury accordingly. The jury's job will be difficult regardless of whether the jurors are tasked with applying Illinois law or the law of a sister state. Accordingly, the third public interest factor favors Plaintiffs. Considering the private and public interest factors within the context of the total circumstances of the case, the Court finds that Defendants have not carried their burden of showing that Illinois is an inconvenient forum. Individually, virtually every private and public interest factor either favors Plaintiffs or is neutral. On balance, the Court cannot say that Illinois is an inappropriate forum to hear these cases. Because Defendants have not shown that, considering the total circumstances of the case, the balance of factors strongly favors dismissal, Defendants Motion to Dismiss Non-Illinois Plaintiffs on Forum Non Conveniens Grounds is denied. III. PERSONAL JURISDICTION A. Law "Personal jurisdiction is a court's power to bring a person into its adjudicative process." In re M. W., 232 Ill. 2d 408, 415 (2009). To be valid, the exercise of personal jurisdiction must be authorized by state law and consistent with state and federal due process. Illinois law authorizes courts to exercise jurisdiction over non-resident defendants to the full extent permitted by the Illinois and federal Constitutions, 735 ILCS 5/2-209(c), and Illinois due process is satisfied when federal due process requirements are met. See Russell v. SNFA, 987 N.E.2d 778, 785 (2013). Therefore, the only issue the Court need decide is whether the exercise of jurisdiction in this case comports with due process under the Fourteenth Amendment to the United States Constitution. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011). There are two forms of personal jurisdiction: specific and general. Specific jurisdiction permits a forum to exercise judicial power over a non-resident defendant only for claims arising from the defendant's contacts with the forum. Russell, 987 N.E.2d at 787. General jurisdiction, by contrast, permits a forum to exercise judicial power over a non-resident defendant for any and all claims. Id, at 786. Under either theory, due process requires that the defendant have sufficient minimum contacts with the forum such that haling the defendant into court in the forum "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Wash., 326 U.S. 310, 316(1945). Courts consider three factors to determine whether the exercise of specific jurisdiction is consistent with due process. First, the defendant must have "purposefully directed its activities at the forum state." Russell, 987 N.E.2d at 787. Second, the plaintiff's claim must arise out of, or relate to, the defendant's specific forum-related contacts. Id. Third, the exercise of jurisdiction must be reasonable. Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113 (1987). The third factor only becomes relevant if the plaintiff satisfies the first two factors. Burger King Corp, v. Rudzewicz, 471 U.S. 462, 476 (1985). The standard for general jurisdiction is more exacting because a defendant subject to general jurisdiction in a forum may be sued in the forum for any cause of action, regardless of whether the suit arises from the defendant's contacts with the forum. See Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1224 (9th Cir. 2011). The Supreme Court has explained that "a court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State." Daimler, 134 S. Ct. at 754 (quoting Goodyear, 134 S. Ct. at 2851)(internal quotation omitted). Accordingly, "only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there." Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). The Supreme Court has held that the paradigm places where a corporation could be subject to general jurisdiction are the corporation's place of incorporation and principal place of business. Id. A corporation may be subject to general jurisdiction somewhere other than its principal place of business or place of incorporation only in an "exceptional case." Id. at 761 n.19, Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 29 of 46 PageID: 1438 In re Plavix Related Cases, 2014 WL 3928240 (2014) WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 B. Analysis *6 As a preliminary matter, Plaintiffs argue in their opposition to Defendants' Motion that Defendants have waived their personal jurisdiction argument. Plaintiffs, however, cite authority which is inapposite and irrelevant. In Re Marriage of Wolf; 355 Ill. App. 3d 403 (2nd Dist. 2005), for example, does not refer to Section 301 or personal jurisdiction, and Larochelle v. Allamian rejected a waiver argument. 361 Ill. App. 3d 217, 221 (2nd Dist. 2005). Plaintiffs also cite outdated authority. The law governing waiver was amended effective January 1, 2000. See 735 ILCS 5/2-301 (West 2003). The Court accordingly declines to consider the cases cited by Plaintiffs' which applied the old version of Section 301. Plaintiffs also fail to specifically identify what Defendants did that resulted in waiver. Plaintiffs have thus waived their waiver argument. L General Jurisdiction The Court will first consider whether Defendants are subject to general jurisdiction in Illinois. Defendants, relying on Daimler, contend that the exercise of general jurisdiction is inappropriate in this case because Defendants are not "essentially at home" in Illinois. Daimler, 134 S. Ct. at 761 (quoting Goodyear, 131 S. Ct. at 2851). In response, Plaintiffs argue that Daimler is inapplicable to the present case because (1) Daimler merely applied the general jurisdiction rules set forth in Goodyear and (2) the present case does not involve international relations. Plaintiffs' first argument lacks merit. Daimler is binding precedent from the United States Supreme Court which this Court is bound to follow. See People v. Hale, 996 N.E.2d 607, 615 (2013). Plaintiffs' second argument lacks merit because the Court in Daimler made clear that the general jurisdiction rule in set forth in Goodyear applied to foreign corporation from "sister state[s]." Daimler, 134 S. Ct. at 754 (quoting Goodyear, 131 S. Ct. at 2851). Accordingly, the Court will apply the holding of Daimler to the present case. In Daimler, 22 Argentinian residents filed suit in California against DaimlerChrysler Aktiengesellschaft ("Daimler"), a German company, alleging that one of Daimler's Argentinian subsidiaries committed atrocities in Argentina during the dirty war. The plaintiffs argued that California could assert personal jurisdiction over Daimler based on the California contacts of Mercedes-Benz USA ("MBUSA"), one of Daimler's subsidiaries. MBUSA has numerous facilities in California and was "the largest supplier of luxury vehicles to the California market." MBUSA's sales in California made up 2.4% of Daimler's total sales worldwide. The Court held that, even assuming MBUSA's contacts could be imputed to Daimler, Daimler was not subject to general jurisdiction in California. The Court rejected the plaintiffs' theory of jurisdiction, which would have subjected Daimler to jurisdiction in every state where it did a "substantial, continuous, and systematic course of business" as "unacceptably grasping" and "exorbitant" because it would have permitted general jurisdiction over Daimler "in every other State in which MBUSA's sales are sizable." Id. at 760-61. Such jurisdictional formulations, the Court noted, "would scarcely permit out-of-state defendants 'to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." ' Id. at 761-62 (quoting Burger King Corp. v. Rudzewicz, 471 U. S. 462, 472 (1985)). The Court made clear that, outside of the principal place of business and place of incorporation, a non-resident defendant corporation may be subject to general jurisdiction only in an "exceptional case." Id. at 761 n.19. In Daimler, the Court cited Perkins v. Benguet Consol Mining Co., 342 U.S. 437 (1952) as an example of an exceptional case. Daimler, 134 S. Ct. at 760 n. 19.In Perkins, the defendant was a mining company with mining property in the Philippines. Perkins, 342 U.S. at 447. The defendant's Philippine operations stopped during the Japanese occupation of the Philippines during World War II. Id. During the time of the occupation, the defendant's president returned to his home in Ohio where he conducted affairs on behalf of the company: Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 30 of 46 PageID: 1439 In re Plavix Related Cases, 2014 WL 3928240 (2014) VVESTLAVV © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 *7 He kept there office files of the company. He carried on there correspondence relating to the business of the company and to its employees. He drew and distributed there salary checks on behalf of the company, both in his own favor as president and in favor of two company secretaries who worked there with him. He used and maintained in Clermont County, Ohio, two active bank accounts carrying substantial balances of company funds. A bank in Hamilton County, Ohio, acted as transfer agent for the stock of the company. Several directors' meetings were held at his office or home in Clermont County. From that office he supervised policies dealing with the rehabilitation of the corporation's properties in the Philippines and he dispatched funds to cover purchases of machinery for such rehabilitation. Id. at 447-48. The Court held, based on the circumstances of the case, that it would not violate due process for Ohio to exercise jurisdiction over the defendant. Id. Neither party contends that Illinois is Defendants' place of incorporation or principal place of business. Therefore, the only issue is whether this is an "exceptional case" akin to Perkins. A close comparison of the facts of Perkins and the facts of the present case reveal that this is not an exceptional case warranting the imposition of general jurisdiction. In Perkins, the defendant corporation was essentially headquartered in Ohio on an interim basis. The company's bank accounts were drawn in Ohio, corporate board meetings occurred there, and in general Ohio was the central locus of many of the company's day-to-day activities. In the present case, by contrast, Plaintiffs claim that Defendants should be subject to general jurisdiction in Illinois because Defendants have retained an Illinois agent for service of process, occupied buildings in Illinois, and employed Illinois residents. Defendants' Illinois contacts are far from exceptional. To the contrary, these are contacts which would be typical of a corporation doing business in any state. Plaintiffs' suggestion that Defendants' substantial Illinois sales revenue justifies imposing general jurisdiction on Defendants warrants special attention because a similar argument was raised and rejected in Daimler. There, the plaintiffs proposed a jurisdictional framework which would have permitted general jurisdiction wherever a corporation generated substantial revenue. Id. at 760-61. The Court rejected the plaintiffs jurisdictional framework as "unacceptably grasping," despite the fact that MBUSA was the largest supplier of luxury vehicles to the California market and MBUSA's California sales accounted for 2.4% of Daimler's worldwide sales. Id. at 752, 761. In the present case, Defendants derive a similar portion of their United States sales revenue from Illinois. Specifically, BMS derives 2.56% of U.S. sales revenue from Illinois sales. Thus, Plaintiffs' contacts with Illinois are no more significant than Daimler and MSUSA's California contacts which were deemed insufficient to support general jurisdiction in Daimler. Accordingly, the Court finds that Defendants' Illinois sales revenue, although substantial, does not provide a valid basis for exercising general jurisdiction. The Supreme Court cautioned in Daimler that "[a] corporation that operates in many places can scarcely be deemed at home in all of them." Id. at 762. n. 20. Plaintiffs' jurisdictional framework, taken to its logical conclusion, would produce exactly that forbidden result: national general jurisdiction in every state in which Defendants are doing business and generating sales revenue. Daimler makes clear that such an approach to general jurisdiction does not comport with due process. Based on the foregoing, the Court finds that the present case is not an "exceptional case" akin to Perkins. Therefore, the Court may not exercise general jurisdiction over Defendants. iL Specific Jurisdiction *8 The Court will next consider whether Defendants are subject to specific jurisdiction in Illinois with respect to Plaintiffs' claims. The first prong of the specific jurisdiction analysis is whether Defendants have "purposefully directed [their] activities at [Illinois]." Russell, 987 N.E.2d at 787. BMS concedes that it has employed Illinois residents in the past and maintained office space in Illinois until January 2013. Likewise, Sandi concedes that two percent of its employees work in Illinois. BMS also concedes that it has sold Plavix in Illinois to Illinois residents and that from November 2010 to November 2011, it derived 2.56% of its total U.S. sales revenue from all product lines from sales in Illinois. Accordingly, the Court finds that Plaintiffs have satisfied the first specific jurisdiction factor. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 31 of 46 PageID: 1440 In re Plavix Related Cases, 2014 WL 3928240 (2014) WESTLAVV © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 The second prong of the specific jurisdiction analysis considers whether Plaintiffs' claims arise from or relate to Defendants' Illinois contacts. Defendants cite Glater v. Eli Lilly & Co., 744 F.2d 213 (1st Cir. 1984) and argue that Plaintiffs claims do not arise from or relate to Defendants' Illinois contacts. Plaintiffs cite Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) and Bristol-Myers Squibb Co. v. Superior Court, A140035, 2014 Cal. App. LEXIS 690 (Cal. Ct. App, July 30, 2014) and argue that Illinois may exercise specific jurisdiction over Defendants because Defendants have purposefully directed their activities towards Illinois and have generated $1,782,812,455.30 in Plavix sales in Illinois from 1996 to 2013 Keeton is distinguishable. Keeton was a libel case in which the defendant distributed magazines containing libelous material in New Hampshire, the state where the plaintiff filed suit. Because someone who is libeled suffers reputational harm wherever the libelous material is distributed, the plaintiff was harmed in New Hampshire and thus the plaintiff's claim arose from the defendant's New Hampshire contacts. 465 U.S. at 773-76, 781. Plaintiffs' citation to Superior Court is equally unavailing. In Superior Court, the California Court of Appeals held that California could exercise specific jurisdiction over BMS with respect to claims brought by non-California residents alleging that they were injured by Plavix. The California Court of Appeals reached this conclusion by applying the "substantial connection" test. The substantial connection test does not require a direct relation between the plaintiff's claim and the defendant's forum contacts, nor does it require that the defendant's contacts be directed towards the plaintiff. Superior Court, 2014 Cal. App. LEXIS 690 at *49. Instead, under the substantial connection test, "the intensity of forum contacts and the connection of the claim to those contacts are inversely related." Id. at *49 (quoting Snowney v. Harrah's Entertainment, Inc., 112 P.3d 28, 37 (Cal. Ct. App. 2005)). Thus, "[t]he more wide ranging the defendant's forum contacts, the more readily is shown a connection between the forum contacts and the claim." Id. (alteration in original). Superior Court is unpersuasive because the California Court of Appeals reached its holding by applying the substantial connection test, a California legal doctrine which is contrary to Illinois law. In Illinois, to satisfy the second factor of the specific jurisdiction analysis, the plaintiff's claim "must directly arise out of the contacts between the defendant and the forum." Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill. App. 3d 556, 561 (2nd Dist. 2003). Subsequent cases have clarified that the relationship between the plaintiff's claim and the defendant's forum contacts exists where (1) the plaintiff's claim "would not have occurred 'but for' the defendant's forum activities" and (2) "the defendant's forum conduct 'gave birth to' the cause of action." Keller v. Henderson, 359 Ill. App. 3d 604, 617 (2nd Dist. 2005) (quoting Massachusetts Sch. of Law v. ABA, 142 F.3d 26, 35 (1st Cir. 1998)). *9 In Glater, cited by Defendants, the plaintiff sued Eli Lily Company in New Hampshire, alleging that she was injured by in utero exposure to diethylstilbestrol (DES). Id. The plaintiff was exposed to DES when her mother ingested the chemical while living in Massachusetts. The court held that it could not exercise personal jurisdiction over Eli Lilly Company because "Glater's cause of action did not arise from Lilly's New Hampshire activities; rather, her injuries were caused in Massachusetts by exposure in utero to DES which her mother purchased and consumed in Massachusetts." Id. at 216. The Court also held that the plaintiff's injury did not relate to Eli Lilly's New Hampshire contacts, noting that such a holding would require the court to hold that "any plaintiff in Glater's position-a nonresident injured out of state by a drug sold and consumed out of state-could bring suit in New Hampshire for DES injuries." Id. n. 4. The Court finds Glater persuasive because it is factually similar to the present case and applied a legal rule similar to the rule adopted by the Illinois Appellate Court in Keller and Spartan. Both the plaintiff in Glater and Plaintiffs in the present case are individuals who (1) ingested a drug in one state; (2) were allegedly harmed by the drug in that state, and (3) then filed suit for injuries caused by the drug in a different state where the drug is also distributed. Just Iike the plaintiff in Glater, the injuries suffered by Plaintiffs' in the present case do not arise from Defendants' Illinois contacts. The non-Illinois Plaintiffs claim they were injured when they ingested Plavix in their home states. Likewise, Plaintiffs' claims do not relate to Defendants' Illinois contacts. While Defendants established a large business network to facilitate the distribution of Plavix in Illinois, Plaintiffs have failed to establish any causal or logical link between their claims and Defendants' Illinois operations. Accordingly, Plaintiffs have failed to satisfy the second factor of the specific jurisdiction analysis. This failure is fatal to Plaintiffs' jurisdictional argument. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 32 of 46 PageID: 1441 In re Plavix Related Cases, 2014 WL 3928240 (2014) WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 The third factor the Court considers is whether the exercise of jurisdiction is reasonable. The Court declines to consider this factor because Plaintiffs have not satisfied the second factor of the specific jurisdiction analysis. Based on the foregoing, the Court may not exercise specific jurisdiction over Defendants. iii. Pendent Personal Jurisdiction Finally, Plaintiffs argue that this Court may exercise pendent personal jurisdiction over Defendants. The doctrine of pendent personal jurisdiction permits a court to exercise personal jurisdiction "over a defendant with respect to a claim for which there is no independent basis of personal jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in the same suit over which the court does have personal jurisdiction." Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004). The doctrine applies most commonly "where one or more federal claims for which there is nationwide personal jurisdiction are combined in the same suit with one or more state or federal claims for which there is not nationwide personal jurisdiction." Id. at 1180-81. The doctrine serves in furtherance of "judicial economy, avoidance of piecemeal litigation, and overall convenience of the parties." Id. at 1181. "But the doctrine does not jettison the requirements of due process." Fiore v. Walden, 688 F.3d 558, 567 (O'Scannlain, J., dissenting from denial of rehearing en bang). That means the court "must actually possess jurisdiction over at least one claim." Id. As the case law makes clear, the claims must come from the same lawsuit. See Action Embroidery, 368 F.3d at 1181. Defendants concede that they are subject to personal jurisdiction in Illinois with respect to claims brought by Illinois residents. Plaintiffs argue that Illinois may exercise jurisdiction over Defendants because Plaintiffs' claims "arise from the same common fact scheme" as the Illinois Plaintiffs' claims. This argument overlooks an important feature of this proceeding: each Plaintiff, resident and non-resident alike, has been ordered to file an individual complaint. Since each complaint has been filed individually, the non-Illinois Plaintiffs' claims do not come from the Illinois Plaintiffs' lawsuit. Therefore, the Court cannot exercise pendent personal jurisdiction over Defendants. IV. CONCLUSION *10 Based on the foregoing, Defendants' Omnibus Motion to Dismiss Non-Illinois Plaintiffs on Forum Non Conveniens Grounds is DENIED. Defendants' Motion to Dismiss Pursuant to 735 5/2-301 for Lack of Personal Jurisdiction is GRANTED. All non-Illinois Plaintiffs' cases are hereby DISMISSED. The parties shall appear for a status conference on August 25, 2014 at 10:00 a,m. in Courtroom 2404. ENTERED: Deborah Mary Dooling Circuit Court Judge Law Division End of Document (C) 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 33 of 46 PageID: 1442 Neutral As of December 15, 2016 1:39 PM EST Nutt v. Best W. Intl United States District Court for the Middle District of Pennsylvania November 16, 2016, Decided; November 16, 2016, Filed Civil Action No. 3:16-CV-0002 Reporter 2016 U.S. Dist. LEXIS 158794 * JULIE NUTT and KEITH NUTT, Plaintiffs, v. BEST WESTERN INTERNATIONAL, et al., Defendants. Prior History: Nutt v. Best W. 2016 U.S. .Dist. LEXIS 126131 (MD. Pa.. Sept. 15, 2016) Counsel: [*1] For Julie Nutt, Keith Nutt, Plaintiffs: James J. Conaboy, LEAD ATTORNEY, Abrahamsen Conaboy & Abrahamsen, P.C., Scranton, PA. For Best Western International, Defendant: John C. McMeekin, II, Rawle & Henderson, LLP, Philadelphia, PA; Susan M Dean, Rawle & Henderson LLC, Philadelphia, PA. For Premier Hotel Management, Premier Hotel, d/b/a Best Western, Defendants: Craig J. Renitsky, Jamie P. Vaughan, Marks, O'Neill, O'Brien, Doherty & Kelly, PC, Philadelphia, PA. Judges: Edwin M. Kosik, United States District Judge. Opinion by: Edwin M. Kosik Opinion MEMORANDUM Before the Court is Defendant Best Western International's ("BWI") Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) (Doc. 66), and alternatively, Motion to Strike Pursuant to Fed.R.Civ.P. (Doc. 66). Also before this Court are Defendants' Primer Hotel Management ("PHM") and Premier Hotel d/b/a Best Western ("PH"), Motion to Dismiss Allegations of "recklessness" and claims for punitive damages, and to strike averments in Plaintiffs Second Amended Complaint pursuant to Fed.R.Civ.P. 12(1)1(6) and 12(f) (Doc. 68). I. BACKGROUND On January 4, 2016, Plaintiffs initiated this action against the above-captioned Defendants by filing a complaint with this Court. (Doc. 1). Plaintiffs allege that I*21 they sustained personal injuries from carbon monoxide exposure on August 24, 2014, while staying at a Best Western Plus Scranton East Hotel & Convention Center, located in Dunmore, Pennsylvania ("Dunmore Hotel"). (Pltfs. Compl.). On May 12, 2016, Defendant BWI filed its first Motion to Dismiss for Lack of Jurisdiction. (Doc. 22). On May 24, 2016, Plaintiffs filed an Amended Complaint (Doc. 26), thereby rendering Defendant's motion to dismiss, moot. Thereafter, Defendant BWI filed a Motion to Dismiss Plaintiffs' Amended Complaint for lack of personal jurisdiction. (Doc. 30). Plaintiffs' subsequently filed a Second Amended Complaint. (Doc. 36). Defendant BWI has renewed its motion for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure, or, alternatively, to strike pursuant to Rule 12(f) of the Federal Rules of Civil Procedure (Doc. 66). BWI is a non-profit Arizona membership association, with its principal place of business in Phoenix, Arizona (Doc. 67, Ex. B., Pollack Aff., at ¶ 3). BWI licenses the use of the "Best Western" name and logo to its members, operates a cooperative reservation system, and engages in joint advertising on behalf of the membership. (a). BWI does not own, operate, manage or lease any member hotel or motel facility; all branded [*3] hotels, including the Dunmore Hotel, are independently owned and operated. (Id. at ¶ 4). Defendants PHM and PH do not contest jurisdiction, rather, they have filed motions to dismiss and to strike certain allegations and claims pursuant to Rules 12(h)(6) and 12(1) (Doc. 68). II. STANDARD OF REVIEW Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 34 of 46 PageID: 1443 Nutt v. Best W. Int'lPage 2 of 7 The Federal Rules of Civil Procedure require a complaint to contain "a short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ. Pro. 8(a)(1). Plaintiff alleges subject-matter jurisdiction on the basis of diversity, which requires that the amount in controversy exceed $75,000, exclusive of interest and costs, and that all plaintiffs be diverse from all defendants. See 28 U.S.C. § 1332. Because diversity of citizenship is a jurisdictional requirement, it is within the exclusive purview of the court to determine whether diversity exists. Carden v. Arkoma Assocs., 494 US. 185, 195, 110 S. Ct. 1015, 108 L. Ed. 2d 157 (1990). In considering a motion to dismiss under Rule 12(h)(2), the court must accept all allegations in the complaint as true, and view all factual disputes in favor of the plaintiff. Pinker v. Roche Holdings. Ltd. 292 F.3d 361. 368 (3d Cir. 2002). When ruling on a Rule 12(b)(2) motion, a court may review affidavits and other evidence submitted by the parties, since it "requires resolution of factual issues outside of the pleadings." Corr. Medical Care, Inc. v. Gray, 07-2840, 2008 U.S. Dist. LEXIS 6596. 2008 WL 248977, at *5 (ED. Pa. Jan. 30. 2008) (quoting Time Share Vacation Club v. A11. Resorts, Ltd., 735 F.2d 61, 66-67 n. 9 (3d Cir. 1984)). Once a defendant raises a Rule 1202)(2) defense, the [*4] burden shifts to the plaintiff to "prov[e] by affidavits or other competent evidence that jurisdiction is proper." Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330, 51 V.I. .1219 (3d Cir. 2009) (quoting Dayhe Inc. v. ILA Heinz Co., 86 .F3d 1287, 1302 (3d Cir. 1996)). When no evidentiary hearing on the jurisdictional issue has been held, "the plaintiff need only demonstrate a prima facie case of personal jurisdiction at the preliminary stages of litigation." Id. (citing O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)). "The plaintiff meets this burden and presents a prima facie case for the exercise of personal jurisdiction by 'establishing with reasonable particularity sufficient contacts between the defendant and the forum state.'" Mellon Bank (East) PSFS, Nat. Ass'n v. Farina, .960 F.2d 1217, 1223 (3d Cir. 1992) (quoting Provident Nat. Bank v. Cal. Fed. Say. & Loan Assoc.. 819 F.2d 434, 437 (3d Cir. 1987)). "Plaintiffs cannot rely on general averments in the complaint or unsupported statements in their response, but must instead provide jurisdictional facts supported by affidavits or competent evidence to sustain their burden." Orazi v. Hilton Hotels Coip., Civ. No. 09-05959, 2010 U.S. Dist. LEXIS 123472, 2010 WL 4751728, at *2 (E.D. Pa. Nov. 22, 2010). III. DISCUSSION A. BWI's Rule 12(h)(2) Motion BWI argues that the Court does not have general personal jurisdiction over it because it is not incorporated within Pennsylvania and its principal place of business is located in Arizona. BWI also argues that the Court does not have specific personal jurisdiction over it because the alleged cause of action does not arise from BWI's forum-related activities. Plaintiffs are silent as [*5] to whether this Court has general personal jurisdiction over BWI, but argue that the Court maintains specific personal jurisdiction over BWI because the allege cause of action arises from BWI's forum-related activities. When the defendant raises a jurisdictional defense, the plaintiff must make aprima facie case of jurisdiction, by showing "that the cause of action arose from the defendant's forum-related activities (specific jurisdiction), or that the defendant has 'continuous and systematic' contacts with the forum state (general jurisdiction)." Mellon Bank (East) PSFS, N.A. v. Di Veronica Bros., Inc.. 983 F.2d 551, 554 (3d Cir. 1993). The plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. A federal court in Pennsylvania has jurisdiction over parties, to the extent Pennsylvania's long-arm statute permits. Pennsylvania's long-arm statute authorizes jurisdiction, "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." 42 Pa.C.S.A. § 5322(b). The due process clause of the Fourteenth Amendment of the United States Constitution, requires that the defendant have minimum contacts with the forum state and that the exercise of jurisdiction "comport[s] with fair play and [*6] substantial justice." Remick v. A4anfrecly, 238 F.3d 248. 255 (3d Cir. 2001) (quoting Int'l Shoe Co. v. Washington, 326 US. 310. 316, 66 S. Ct. 154. 90 L. Ed. 95 (1945)). "[M]inimum contacts must have a basis in 'some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.' Asahi Metal Indus. Co.. Ltd. v. Super. Cl. of Cal., 480 U.S. 102, 109. 107 S. Ct. 1026. 94 L. Ed 2d .92 (1.987) (quoting Burger King Corp. Y. Rudzewicz. 471 US. 462. 475, 105 S. a 2174. 85 L. Ed. 2d 528 (1985)). 1. General Jurisdiction The Court first considers whether it has general jurisdiction over Defendant BWI. BWI's Director of Member Care Administration, Cheryl Pollack, declares that BWI is an Arizona nonprofit membership association with its principal place of business in Phoenix, Arizona, and that it does not operate any facilities in Pennsylvania. (Doc. 67, Ex. B, Pollack Aft , at III I, 3, 11). BWI further argues that it does Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 35 of 46 PageID: 1444 Nutt v. Best W. Int'lPage 3 of 7 not maintain an office within Pennsylvania, does not have bank accounts in Pennsylvania, and does not own real or personal property in Pennsylvania. (Doc. 67, Br. in Support, at 18). Plaintiffs do not provide any contrary argument or evidence refuting BWI's declarations. A court has general jurisdiction over a defendant when the defendant possesses "continuous and systematic contacts with the forum[,]" regardless of the "claim's relationship to the defendants' in-forum contacts." In re Chocolate Confectionary Antitrust Litig. 602 F. Supp. 2d 538. 565 (M.D. Pa. 2009). It is the Plaintiffs' [*7] burden to establish personal jurisdiction after a defendant raises a jurisdictional defense. The Supreme Court has ruled on two general jurisdiction cases: Goodyear Dunlop Tires Operations. S.A. v. Brown. 564 US. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) and Daimler AG v. Batunan, U.S. . 134 S.Ct. 746. 187 L.Ed.2d 624 (2014), making clear that for general jurisdiction purposes, the inquiry is not whether "a foreign corporation's in-forum contacts can be said to be in some sense 'continuous and systematic,' it is whether that corporation's 'affiliations with the state are so "continuous and systematic" as to render [it] essentially at home in the forum State."' Daimler, 134 S.C1. at 761 (quoting Goodyear, 131 S. C1. at 2851), In all but the most exceptional circumstances, a corporation is "at home" only in the two "paradigm [] ... bases for general jurisdiction": its state of incorporation and its principal place of business. Id. at 760-61. In this case, Plaintiffs fail to meet their burden of showing that BWI is "at home" in Pennsylvania and thus, subject to general personal jurisdiction. Plaintiffs do not allege that BWI is incorporated or has its principal place of business in Pennsylvania. To the contrary, Plaintiffs allege that BWI's corporate address is Phoenix, Arizona and for "diversity of jurisdiction purposes, ... is considered a resident of ... Arizona." (Doc. 36, Pltfs.' Second Am. Compl., at 3). [*8] Moreover, despite the opportunity to respond to B WI's argument that this Court lacks general jurisdiction over it, Plaintiffs provide no counterargument or support, through affidavits or otherwise, that would detail the extent of BWI's operations in Pennsylvania. The mere allegations that BWI licenses its trade name and logo in Pennsylvania, maintains a reservation system which caters to citizens of Pennsylvania, and provides national advertising, without more, does not render BWI "at home" in Pennsylvania and subject it to general jurisdiction here. See e.g. Farber v. Tennant Truck Lines, Inc., 84 F. Supp. 3d 421, 424-25 (E.D. Pa. 2015) (defendant was not "at home" in Pennsylvania even where defendant paid taxes, employed workers, purchased supplies, and filed a corporate tax report in Pennsylvania); Campbell v. Fast Retailing USA, Inc., Civ. No. 14-6752, 2015 US. Dist. LEXIS 170986, 2015 FPI 9302847, at *3 (E.D. Pa. Dec. 22. 2015) ("[t]he allegation that an entity transacts business, even substantial business, in Pennsylvania is insufficient to establish that it is essentially 'at home' in Pennsylvania") (citations omitted); Fields v. Ramada Jim, Inc., 816 F.Supp. 1033, 1037 & n. 3 (E.D. Pa.1993) (advertisements, promotional brochures and worldwide directories that listed franchise locations insufficient for general jurisdiction); Romero v. Holiday Inn. Civ. No. 98-2192, 1998 US. Dist. LEXIS 19997. 1998 WL 961384, at * 2 (E.D. Pa Dec. 15, 1998) (stating "inclusion within a worldwide directory and the availability of reservations over a toll-free line, even when accompanied by [*9] contributions to a franchisor's national advertising campaign, do not demonstrate systematic and continuous contacts"). Moreover, while BWI's alleged affiliated entities that are independent owners/operators of hotels, may operate in Pennsylvania (Doc. 67, Ex, B, Pollack Aff., at 1113, 4, 5, 9, 11-16), Plaintiffs offer no evidence that these organizations are "de facto [] a single, organic entity." In re Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d at 569. We will not impute the contacts attributed to these separate entities to BWI. See Daimler, 134 S. Ct. at 760 (rejecting general jurisdiction based solely on the presence of a foreign corporation's subsidiaries in a forum); Odell v. Mariner- Denver, Inc., 461 F. Supp. 306, 309 (S.D. Ind. 1978) (holding that the mere fact a foreign corporation may have subsidiaries, franchisees or licensees in a state does not necessarily subject it to the jurisdiction of that state) (citations omitted); Farina v. Nokia, 578 F. Supp. 2d 740, 751-52 (E.D. Pa. 2008) (stating that a "licensee's contacts with a forum state are not, standing alone, enough to bring a licensor within the personal jurisdiction of the state") (citations omitted). 2. Specific Jurisdiction The Court next considers whether it has specific jurisdiction over Defendant BWI.. In determining whether the court has specific jurisdiction over a party, the court considers the following three factors: 1'1'101 (1) whether the party purposefully directed its activities at the forum; (2) whether the causes of action arise out of or relate to at least one of those activities; and (3) if the first two requirements are met, whether the exercise of jurisdiction otherwise comports with fair play and substantial justice. D'Jamoos ex el Estate of Weingeroffv. Pilatus Aircraft Ltd.. 566 F.3d 94, 102 (3d Cir. 2009) (citing Burger King Corp. v. fluckewicz, 471 U.S. 462. 472, 476, 105 S. Ct. 2174. 85 L. Ed. 2d 528 (1985); He.licopteros Nacionales de Colombia. S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868. 80 L. Ed. 2d 404 (1984); O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312. 317 (3d Cir. 2007). Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 36 of 46 PageID: 1445 Nutt v. Best W. Int'lPage 4 of 7 The first two parts of the test determine whether a defendant has the requisite minimum contacts with the forum. DVamoos, 556 F.3d at 102. The defendant must have "purposefully avail[ed] itself of the privilege of conducting activities within the forum state." Hanson v. Denckla. 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). While a defendant's physical entrance into the forum is not necessary, a defendant's contacts must amount to "a deliberate targeting of the forum." O'Connor. -196 F.3d at 317; Burger King. 471 U.S. at 476. The "unilateral activity of those who claim some relationship with a nonresident defendant" is insufficient. Hanson. 357 U.S. 253. Plaintiffs contend that specific jurisdiction may be exercised over BWI as it has purposefully directed its activities at Pennsylvania residents. (Doc. 76, Pltfs. Br. In Opp., at p. 14 (*Il] ). Specifically, Plaintiffs argue that BWI targeted advertising at residents of Pennsylvania, required its affiliates to maintain various standards, and offered an interactive reservation system on www.bestivestern.com .(14. at 14-15). Plaintiffs, however, have not offered or supported their allegations with any sworn affidavit or other competent evidence, and their brief in opposition to BWI's motion cannot serve to establish personal jurisdiction. Croyle v. Hutchison. Civ. No. 77-1141, 2012 U.S. Dist. LEXIS 8532& 2012 FYL 2358999. at *2 (WD. Pa. June 20. 2012); (citing Nationwide Contractor Audit Serv., Inc. v. Nat'l Compliance WM. Services, Inc.. 622 F. Supp. 2d 276, 282 (W D. Pa. 2008)). Moreover, determining whether personal jurisdiction exists based on contact through an interactive website requires the court to assess the level of interactivity and commercial nature of the exchange of information, Croyle. 2012 US Dist. LEXIS 85328. 2012 WL 2358999 at *3, and it "must be shown that [the] 'web site targets a particular remote jurisdiction ...I Planet Goalie, Inc. v. Monkeysports, Inc., Civ. tVo. 10-2629, 2011 U.S. Dist. LEXIS 98578, 2011 WL 3876178 at *3 (M D. Pa. Sept. 1, 2011) (internal citations omitted); Accitweather, Inc. v. Total Weather, Inc.. 223 F. Supp. 2d 612, 616 Pa. 2002) (stating that a website and toll-free number were not sufficient to establish personal jurisdiction in Pennsylvania) (citing S. Moranlz, Inc. v. Hang & Shine Ultrasonics, Inc., 79 F. Supp. 2d 537. 540-41 (E, D. Pa. 1999)). Here, Plaintiff has not shown that BWI purposefully directed or specifically targeted Pennsylvania residents with their advertising or website. Under the circumstances, without affidavits or other competent evidence, Plaintiffs' mere averment that they used a website to book a hotel room fails to meet the first element necessary in finding specific jurisdiction. Planet Goalie, Inc.. 2011 U.S. Dist. LEXIS 98578, 2011 WL 3876178 at *5 (declining to exercise specific jurisdiction where plaintiff failed to show that defendant's website specifically targeted Pennsylvania [* 12] residents, even though nine percent of defendant's sales occurred in Pennsylvania). In an attempt to support jurisdiction, Plaintiffs aver that by 1963, BWI was the largest hotel chain with 699 member hotels and since then, has 2,707 hotels in North America alone. (Doc. 36, Pltfs' Sec. Am. Compl., at p. 4). Plaintiffs allege that as the "franchisor and brand manager, [BWI] has the means, ability, and right to control many aspects of the day-to-day operations of its brand hotels, including the right to require carbon monoxide detectors in guest rooms ...." a). Plaintiffs thus conclude that such alleged activity by BWI shows that BWI has purposefully availed itself to the privilege of conducting activities within this forum and that the instant litigation arises out of or relates to its contact within this forum. (Doc. 76, Pltfs. Br. In opp., at pp. 13-14). These facts, however, do not support specific jurisdiction over BWI. Plaintiffs provide no evidence that BWI owned, operated, controlled or had any relationship, beyond sharing a brand identity, with the in-forum Best Western hotel, independently owned and operated by Defendant, PHM. (Doc. 67, Ex, B, Pollack Aff., at ¶113, 4, 5, [*131 9, 11-16). To the contrary, BWI declares that it acts as a cooperative marketing association, which licenses the use of the "Best Western" name and logo to its members, and BWI's members are independent owners/operators of the properties. (Id. at 3). The "Best Western" branded hotels are independently owned and operated and operate as such pursuant to a BWI Membership Application and Agreement.' (Id. at ¶ 4). The Dunmore Hotel is owned and operated by Defendant PHM, and BWI's relationship to PHM is that of an independent contractor. (Doc. 67, Ex. B 1, Membership Agreement, at ¶ 17). Finally, BWI has no responsibility for the safety, use, condition, or operation of the hotel. J. It is the plaintiffs who must sustain their burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Here, Plaintiffs have not made a The court notes that BWI declares in its affidavit that each "Best Western" branded hotel is required to display a plaque identifying the hotel as being independently owned and operated, that the disclaimer "Each Best Western branded hotel is independently owned and operated" appears on every page of the Best Western website (Doc. 67, Ex. B, Pollack Aff., at In 15, 16), and at the bottom of Plaintiffs' reservation confirmation email (Doc. 36, Pltfs. Sec. Am. Compl., Ex A), there are disclaimers that the "Best [*14] Western" branded hotels are independently owned and operated. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 37 of 46 PageID: 1446 Nutt v. Best W. Int'lPage 5 of 7 prima facie showing of specific jurisdiction over BWI. We find that this Court lacks jurisdiction over BWI. Accordingly, BWI's motion to dismiss pursuant to Rule 12(b)(2) will be granted. Because we will grant BWI's motion for lack of personal jurisdiction, we need not consider its alternative motion to strike pursuant to Rule 1209. C. Jurisdictional Discovery In their oppositional brief, Plaintiffs alternatively request that the Court allow them jurisdictional discovery "to procure additional proof of purposeful contacts with the forum." (Doc. 76, Pltfs. Br. In Opp., at p. 17). Plaintiffs, however, as set forth above, have not made the required threshold showing of the existence of the requisite contacts between BWI and Pennsylvania. See Mellon Bank (East) PSFS, Nat'l Assn v. Farina 960 F. 2d 1217, /223 (3d Cir. 1992). Moreover, Plaintiffs fail to provide a request that is specific. See Tors "R" Us, Inc. V. Step Two. S.A., 318 F.3d 446, 458 (3d Cir. 2003). Given the Membership Application and Agreement produced by BWI, along with its supporting Affidavit, (Doc. 67, Ex, B), the Court fails to see how any further requested [* 15] information, whatever that may be, would establish that this Court has proper jurisdiction over BWI. This request will be denied. D. PHM's and PH's 12(b)(6) and 12(1) Motions We now turn to Defendants PHM and PH's motions to dismiss for failure to state a claim per Rule 12(b)(6) and to strike averments 17-22 and 45 of Plaintiffs' second amended complaint per Rule 12(1). As a preliminary matter, before we delve into the merits of the arguments, we address Plaintiffs' procedural argument concerning Defendants' failure to attach a certificate of concurrence or non-concurrence to their motion. Plaintiffs request that on this basis alone, we should deny Defendants' instant motion. However, because we find no resultant prejudice by this failure, we will not deny Defendants' motion merely on the basis that a certificate of concurrence or non-concurrence was not attached. See Curran v. Mark Zinnamosca cl Assocs., Civ. No. 12-750, 2014 U.S. Dist. LEXIS 3734, 2014 WL 271934, at * 3 (MD. Pa. Jan. 23, 2014). 1. 12(b)(6) Motion A motion under Rule 12(b)(6) allows the defendant to raise the defense that the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must set forth a claim for relief, which contains a short and plain statement of the claim, showing that the pleader is entitled to relief. The complaint must provide [*16] the defendant with fair notice of the claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, .127 S. Ct. 1955, 167 L. Ed 2d 929 (2007). The issue in a motion to dismiss is whether the plaintiff should be entitled to offer evidence to support the claim, not whether the plaintiff will ultimately prevail. See Phillips v. Cniy. ofAlleghenv, 515 F. 3d 224, 232 (3d Cir. 2008) (the Rule 8 pleading standard "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element."); Naini v. Fauver. 82 F. 3d 63, 65 (3d Cir. 1996). The onus is on the plaintiff to provide a well-drafted complaint that alleges factual support for its claims. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly. 550 U.S. at 555 (alteration in original and internal citations omitted). The court need not accept unsupported inferences, Cal. Pub. Employees Ret. Svs. v. The Chubb Corp.. 394 F.3d 126, 143 (3d Cir. 2004), nor legal conclusions cast as factual allegations, Twombly, 550 US. at 556. Legal conclusions without factual support are not entitled to the assumption of truth. See Ashcroft v. lybal, 556 U.S. 662. 677-679, 129 S. Ct. 1937. 173 L. Ed. 2d 868 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not" satisfy the requirements of Rule 8). Once the court winnows the conclusory [*17] allegations from those allegations supported by fact, which it accepts as true, the court must engage in a common sense review of the claim to determine whether it is plausible. This is a context- specific task, for which the court should be guided by its judicial experience. The court must dismiss the complaint if it fails to allege enough facts "to state a claim to relief that is plausible on its face." lqbal. 556 U.S. at 677 (quoting Twombly. 550 U.S. at 570). A "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." labal, 556 U.S. at 677. Defendants PHM and PH argue that Plaintiffs' claims for punitive damages are merely conclusions of law and bare allegations. (Doc. 69, Defs.' Br. In Supp., at p. 4). Further, Defendants PHM and PH argue that the term "recklessness" is used generally to describe the conduct of moving Defendants, but are unsupported by factual information within the complaint. (Id.). As tenuous as Plaintiffs' claims for punitive damages Defendants' may think, we believe Plaintiffs have set forth sufficient facts to support the same, especially at this early juncture. Accordingly, we will allow this claim to proceed [*18] to discovery. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 38 of 46 PageID: 1447 Nutt v. Best W. Int'lPage 6 of 7 2. 12(1) Motion "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R.Civ.P. 12(1). A decision to grant or deny a motion to strike a pleading is vested in the trial court's discretion. See Snare & Triest v. Friedman, 169 F. 1. 6 (3d Cir. 1909); BJC Health Svs. v. Columbia Cas. Co., 478 F.3d 908. 917 (8th Cir. 2007). "The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters." McInerney v. Moyer Lumber & Hardware. Inc., 244 F. Sum 2d 393. 402 (E.D. Pa. 2002). "Immaterial matter is that which has no essential or important relationship to the claim for relief. Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Scandalous matter has been defined as that which improperly casts a derogatory light on someone, most typically on a party to the action. Scandalous pleading must 'reflect cruelly' upon the defendant's moral character, use 'repulsive language' or 'detract from the dignity of the court.'" Donnelly v. Commonwealth Fin. Svs.. Civ. No. 07-1881, 2008 U.S. Dist. LEXIS 28604. 2008 in 762085, at *4 (M.D. Pa. Mar. 2008) (internal citations omitted). Motions to strike are decided on the pleadings alone. Hanover Ins, Co. v. Ryan, 619 F. Supp.2d 127, 132 (E.D. Pa. 2007). Because a motion to strike is not favored, a court will generally not grant such a motion unless the material to be stricken bears no possible relationship to the controversy r 191 and may cause prejudice to one of the parties. See Hanover Ins. Co.. 619 F. Supp. 2d at 133; Miller v. Group Voyagers, Inc., 912 F. Sunp. 164. 168 (E. D. Pa. 1996). In deciding the motion, a court should also consider the liberal pleading standards of Rule 8 and the lack of a developed factual record at this early stage of litigation. See Hanover Ins. Co., 619 F. Supp. 2d at 133; United States v. Consolidation Coal Co., Civ. No. 89-2124, 1991 U.S. Dist. LEXIS 15229, 1991 1FL 333694, at *1 (WD. Pa. Jul. 5. 1991) (citing Kelley v. Thomas Solvent Co., 714 F. Supp. 1439. 1442 (WD. Mich. 1989)). Defendants PHM and PH ask the Court to strike paragraphs 17-22 and 45 of Plaintiffs' second amended complaint. Paragraphs 17-22 of the second amended complaint reference six separate incidents involving carbon monoxide issues at Best Western hotels throughout the country. Defendants assert that these paragraphs should be stricken as none of these incidents referenced in paragraphs 17-22 occurred at the Dunmore Hotel, and "have no regards for geographic scope ... [and] have no bearing on liability in this matter." (Doc. 69, Defs.' Br. In Support of Mot. To Dismiss, at p. 6). Plaintiffs assert that Defendants PHM and PH, as "franchees" of BWI, are required to meet certain standards promulgated by BWI, and thus, knowledge of other "similar instances" is relevant. Although paragraphs 17-22 may contain scandalous and/or inadmissible assertions, the court will not strike such matters as wholly irrelevant. Paragraphs 17-22 are at least minimally related to r201 Plaintiffs' claims of negligence. Similarly, paragraph 45, which alleges that the Dunmore Hotel was closed due to safety issues concerning fire protection and unsafe equipment, will not be stricken for the same reasons. IV. CONCLUSION For the reasons set forth above, the Court will grant, in part, and deny, in part, BWI's Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(h)(2) (Doc. 66). BWI's motion will be granted as to its dismissal from this action for lack of jurisdiction pursuant to Rule 12(b)(2). It will be denied as to BWI's alternative motion to strike (Doc. 66), as moot. Finally, Defendants PHM and PH's Motion to Dismiss and to Strike (Doc. 68), will be denied. An appropriate order follows. ORDER AND NOW, THIS 16th DAY OF NOVEMBER, 2016, IT IS HEREBY ORDERED THAT: (1) Defendant Best Western International's Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(h)(2) for Lack of Personal Jurisdiction, and Alternatively, to Strike Pursuant to Fed.R.Civ.P. 12(1) (Doc. 66), is GRANTED in part and DENIED in part as follows: (a) Best Western International's Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) for Lack of Personal Jurisdiction is GRANTED. Best Western International r211 shall be dismissed from this action; (b) Best Western International's Alternative Motion to Strike is DENIED as Moot; (2) Defendants Premier Hotel Management and Premier Hotel d/b/a Best Western's Motion to Dismiss and Motion to Strike (Doc. 68) is DENIED; and, (3) Defendants Premier Hotel Management and Premier Hotel d/b/a Best Western shall file an Answer to the Second Amended Complaint within fourteen (14) days from the date of this Order. /s/ Edwin M. Kosik Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 39 of 46 PageID: 1448 Nutt v. Best W. Int'lPage 7 of 7 Edwin M. Kosik United States District Judge End of Document Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 40 of 46 PageID: 1449 0 Neutral As of: December 15, 2016 1:41 PM EST Mann v Bales United States District Court for the Middle District of Pennsylvania October 7, 2016, Decided; October 7, 2016, Filed Case No. 4:15-CV-01440 Reporter 2016U.S.Dist.LEXIS139684* States District Court for the Northern District of Illinois.' JACK MANN, Plaintiff, v. HEATHER BALES, et al., Defendants. Prior History: Mann v. Bales, 2016 U.S. Dist. LEXIS 91053 Pa., .Daly 12. 2016) Counsel: [*1] Jack Mann, Plaintiff, Pro se, Ashland, KY. For Heather Bales, Mann Insurance Agency, Inc., Defendants: Bethany N Schols, Hardt Stern & Ka. yne PC, Riverwoods, IL; Thomas J. Campenni, Rosenn, Jenkins & Greenwald, LLP, Wilkes-Barre, PA. For Judson Mann, George F. Mann, Julia A. Mann, G.F. Mann Agency, Ltd., Global Risk Services, Ltd., Defendants: Andrew J. Gallogly, Margolis Edelstein, Philadelphia, PA. Judges: Matthew W. Brann, United States District Judge. (Magistrate Judge Schwab). Opinion by: Matthew W. Brann Opinion MEMORANDUM Before the Court for disposition are (1) Defendants Heather Bales and Mann Insurance Agency, Inc.'s Motion to Dismiss, and (2) Defendants George F. Mann, III, Julia A. Mann, Judson H. Mann, G.F. Mann Agency, Ltd., and Global Risk Services' Motion to Dismiss. Magistrate Judge Susan E. Schwab has prepared a Report and Recommendation concerning these Motions. For the following reasons, this Report and Recommendation will be adopted in its entirety. Defendants' Motions to Dismiss will be granted for lack of personal jurisdiction, and the case transferred to the United I. BACKGROUND AND PROCEDURAL HISTORY On July 27, 2015, Plaintiff Jack Mann ("Plaintiff"), a prisoner then incarcerated at FCI Allenwood, filed a Complaint against (1) Heather Bales; (2) Judson Mann; (3) George F. Mann, III; (4) Julia A. Mann; (5) G.F. Mann Agency, Ltd.; (6) Mann Insurance Agency, Inc.; (7) Global Risk Services, Ltd; and (8) all members of the Board of Directors of each corporation.2 Plaintiff alleged within this Complaint that Defendants had converted to their own use his book of business relating to an insurance business. Ownership of this insurance business, Mann Insurance Agency, Inc., had previously been transferred to Plaintiffs ex-wife, Heather Bales, as part of their divorce proceeding. She thereafter sold the insurance company and book of business to Judson Mann, George F. Mann, III, Julia A. Mann, G.F. Mann Agency, Ltd., and Global Risk Services.3 Based on these facts, Plaintiff asserted seventeen state Iaw claims and one [*3] claim under the Telephone Consumer Protection Act of 1991 ("TCPA").4 On October 14, 2015, Magistrate Judge Schwab directed Plaintiff to file an Amended Complaint on or before November 9, 2015.5 The court found that it lacked subject I Also pending before the Court are Plaintiffs subsequently filed "Motion [*2] 'to Recall Pltfs Opposition Motions to Does. 76 & 78," (ECF No. 92), and "Motion to Compel Mini Trial, Mediation or Arbitration" (ECF No. 99). Because the Court lacks personal jurisdiction over Defendants, it cannot rule on these two motions. 2 Complaint (ECF No. 1). 3 Compl. 1-3, at 1. 4 47 U.S.C. 4; 227 et seq. 5 Order of Oct. 14, 2015 (ECF No. 11). Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 41 of 46 PageID: 1450 Mann v. BalesPage 6 of 6 matter jurisdiction over the complaint under federal question6 and diversity jurisdiction.7 Magistrate Judge Schwab reasoned that (1) the court lacked federal question jurisdiction because Plaintiff had failed to assert an arguable claim under the TCPA, and (2) Plaintiff failed to allege facts from which diversity jurisdiction could reasonably be inferred. In accordance with the leave to amend granted by Magistrate Judge Schwab, Plaintiff filed an Amended Complaint on November 3, 2015.8 The amended pleading again [*4] contained seventeen state law claims and a TCPA claim. In addition, however, Plaintiff alleged a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act.9 On January 11, 2016, Defendants Heather Bales and Mann Insurance Agency, Inc. ("Bales Defendants") filed a Motion to Dismiss the Amended Complaint.10 Defendants George F. Mann, III, Julia A. Mann, Judson H. Mann, G.F. Mann Agency, Ltd., and Global Risk Services ("Mann Defendants") then filed a Motion to Dismiss.11 These Motions were subsequently fully briefed by all parties.12 On July 12, 2016, Magistrate Judge Schwab issued a Report and Recommendation concerning these pending Motions to Dismiss.13 The Report advised the Court to grant Defendants' motions to dismiss due to a lack of personal jurisdiction over the Defendants. The Report further recommended the transfer of this case to the United States District Court for the Northern District of Illinois, pursuant to 28 U.S.C.' 1631. On July 26, 2016, both the Bales Defendants and the Mann Defendants filed Objections to the Report and Recommendation.14 These Objections have since 1.0,5] been fully briefed by all 628 U.S.0 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"). . 728 U.S.0 $ 1332 ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States"). 8 Amended Compl. (ECF No. 14). 91d. at 40. 10 ECF No. 30. 11 ECF No. 35. 12 ECF Nos. 36, 42, 59, 68, 71, & 74. 13 ECF No. 85. 14 ECF Nos. 87 & 89. parties.15 II. LEGAL STANDARD Upon designation, a magistrate judge may "conduct hearings, including evidentiary hearings, and ... submit to a judge of the court proposed findings of fact and recommendations."16 Once filed, this Report and Recommendation is disseminated to the parties in the case who then have the opportunity to file written objections.17 When objections are timely filed, the District Court must conduct a de novo review of those portions of the report to which objections are made.1 Although the standard of review for objections is de novo, the extent of review lies within the discretion of the District Court, and the court may otherwise rely on the recommendations of the magistrate judge to the extent it deems proper.19 For portions of the Report and Recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."20 Regardless of whether timely objections are made by a party, the District Court may accept, not accept, or modify, in whole or in part, the findings or recommendations NI made by the magistrate judge.21 III. DISCUSSION Having reviewed those portions of the Report and Recommendation to which no objections were made, the Court is satisfied that, on its face, it has no clear error. As noted above, the Mann Defendants and Bales Defendants have filed Objections to the findings of the Report and Recommendation. Following a de novo review of those 15 ECF Nos. 88, 90, 96, 97, & 98. 1628 U.S.0 $ 636(b)(1)(B). 17 28 U.S.0 $ 636(b)(1). 18 28 U.S.C. 636(b)(1); Brown v. .4strue, 649 F.3d 193, 195 (3d Cir. 2011). 18 Rieder v. ArV'el, 115 F.Supp.2d 496, -199 (M.D.Pa, 2000) (citing United States v. Raddatz, 447 U.S. 667. 676. 100 S. Ct. 2406, 65 L. Ed, 2d 424 (19800. 20Fed.R.Civ.P. 72(h), advisory committee notes; see also Univac Dental Co. v. Dentsplv Intern., Inc., 702 F,Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F. 874, 878 (3d Cir. 1987)) (explaining that judges should give some review to every report and recommendation). 21 28 U.S.0 $ 636(b)(1); Local Rule 72.31. Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 42 of 46 PageID: 1451 Mann v. BalesPage 3 of 6 portions of the Report to which objection was made, I note that these objections do not contest the finding that this Court lacks personal jurisdiction over Defendants. Rather, they are limited to Magistrate Judge Schwab's recommendation that the case be transferred. The Court adopts the sound reasoning of the Report and Recommendation and will transfer this case to the Northern District of Illinois. Title 28 of United States Code Section 1631 permits a court that lacks jurisdiction to transfer a civil action to a district where the action could have originally been brought.22 Transfer pursuant to Section 1631 is thus appropriate when (1) jurisdiction is wanting in the transferor court, (2) the transfer is in the interest of justice, and [*7] (3) the action could have been brought in the transferee court at the time it was filed.23 In their objections, Defendants do not take exception to this Court lacking personal jurisdiction. They do, however, argue that (1) the action could not have been brought in the transferee court at the time it was filed, and (2) transfer is not in the interest of justice. In support of their first contention, Defendants argue that the Report and Recommendation erred by advising transfer and not recognizing that the Northern [*8] District of Illinois lacked subject matter jurisdiction. Defendants specifically state that (1) no diversity jurisdiction exists to support subject matter jurisdiction under 28 U.S.C. § 1332, and (2) no federal question jurisdiction exists under 28 U.S.C. $1331 because Plaintiff has failed to allege plausible TCPA and civil RICO claims.25 22 Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 28 U.S.C. 631_ '(emphasis added). 23 Farber v. Tennant Truck Lines, Inc., 84 F.Supp.3d 421, 435 (3d Cir. 2015); Rodrizuez v. Bush, 367 F.Supp.2d 765, 772 (E..D.Pa. 2005). 24 See Br. in Supp. of Objections of Bales Defs. to Magistrate's Report and Recommendations ("Bales Defs.' Brief')(ECF No. 90), at i; Br. in Supp. of Objections of Mann Defs. to Magistrate's Report and Recommendation ("Mann Defs.' Brief") (ECF No. 88), at i. 25See Bales Defs.' Brief at 11-15; Mann Defs.' Brief at 12-16. A. Plaintiffs Complaint Could Not Have Been Filed in the Northern District of Illinois Based On Diversity of Citizenship Jurisdiction. Concerning the first argument, the Court agrees with Defendants that this case could not have been brought in the Northern District of Illinois based on diversity jurisdiction. Because federal courts are of limited jurisdiction, the? must possess jurisdiction over a case to address its merits. 6 Under 28 U.S.C. 1332, a District Court has jurisdiction by way of diversity of citizenship "where the matter in controversy exceeds the sum or value of $75,000, exclusive [*9] of interests and costs, and is between ... citizens of different states."27 The Supreme Court of the United States has interpreted diversity of citizenship to require complete diversity-i.e. diversity between each plaintiff and each defendant.28 To establish citizenship within the meaning of Section 1332, a person must be both "a citizen of the United States and be domiciled within the State."29 Concerning domicile, the Supreme Court has stated that: [T]he domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning. This general statement, however, is difficult of application. Each individual case must be decided on its own particular facts. In reviewing a claim, relevant criteria include year-round residence, voter registration, place of filing tax returns, property ownership, driver's license, car registration, marital status, vacation employment, etc.'3° Once acquired, a domicile is presumed to continue until 26 Auto-Owners Insurance Co. v. Stevens & Ricci Inc., F.3d 2016 U.S. App. ',EMS 16182, 2016 WL 4547641 at *19 (3d Cir. Sept. 1, 2016) (quoting Packard v. Provident Nat. Bank, 994 F.2d 1039, 1042 (3d Cir. 1993)). 27 28 U.S.C. 1332. 28 Owen Equip. & Erection Co. v. Kroger, -137 U.S. 365. 373. 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978); Barefbot Architect. Inc. v. Marge. 632 F.3d 822, 836, 54 EL 948 (3d Cir. 2011). 2° Newman-Green, Inc. v. Alfonzo-Larrain. 490 U.S. 826. 828. 109 S. Ct. 2218. 104 L. Ed. 2d893 (1989) (emphasis in original) 3° flandiS v. Kline, 412 U.S. 441, 454, 93 S. Ct. 2230. 37 L. Ed. 2d 63 (1973). Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 43 of 46 PageID: 1452 Mann v. BalesPage 4 of 6 circumstances demonstrate otherwise.31 To demonstrate a change in domicile, an individual must (1) take up residence in a new domicile, and (2) intend to remain there indefinitely. [*10132 The burden is on plaintiff to establish that diversity of citizenship exists.33 Here, the Court finds that Plaintiff has failed to meet his burden of establishing diversity of citizenship. Prisoners, such as Plaintiff, are presumed to retain their prior citizenship when the gates close behind them.34 Prior to his incarceration, Plaintiff was a legal resident of the State of Illinois.35 By operation of law, he is therefore rebuttably presumed to retain this citizenship during his term of incarceration. At the time he commenced suit,3 Plaintiff was incarcerated at FCI Allenwood, White Deer, Pennsylvania.37 He could, therefore, overcome this presumption of Illinois citizenship, and thus demonstrate diversity of citizenship by establishing Pennsylvania as his new domicile. Plaintiff however, fails to satisfy the two domiciliary requirements. While he was unquestionably residing in Pennsylvania at the time this action was commenced, he McCann v. Newman Irrevocable Trust. 458 F.3(1281. 287 (3d Ch.. 2006) (citing Mitchell v. United States, 88 U.S. 350 353, 22 L. Ed 584, 10 Cl. Cl. 120 (18741). 321d (citing Krasnov v. Dinah, 465 F.2d 1298, 1299-1300 (3d Or. 2003)). 33 Petruska v. Gannon University, 462 F.3d 294, 301 n. 3 (3d Cir. 2006). 34 Mala v. Crown Bay Marina, Inc., 704 F.3d 239. 247, 58 V.I. 691 Pd Cir. 2013) (citing Hall v. Curran, 599 F.3d 70, 72 (1st Cir. 2010); Smith v. Cummins's. 445 F3ci 1254. 1260 (10th Or. 2006); Sullivan v. Freeman, .944 F.2d 334, 337 (7th C. 1991)). 35 Amended Compl. ¶ 5, at 2. 36 See Grupo Dataflu..v v. Atlas Global Grp„ L.I',, 541 U.S, 567, 570- 571, 124 S. Ct. 1920, 1581. Ed. 2d 866 (2004) ("it has long been the case that the jurisdiction of the court depends upon the state of things at the time of the action brought.... [This rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing") (internal [* 11] quotations and citations omitted). 37 Compl. (ECF No. 1), at 34. la See, e.g., Robinson v. Temple University Health Servs.. 506 F.App':. 112. 115 (3d Cir. 2012) (noting that circuits which follow the rebuttable presumption model allow a prisoner to establish domicile only in the state of incarceration and opining that it is doubtful that instant plaintiff can establish domicile in a third state). failed to allege intent to remain in the state or to return there following an absence.39 To the contrary, Plaintiff has expressed an intention to reside in the State of New York following his release.40 Because Plaintiff does not intend to remain in the state in which he is permanently residing- Pennsylvania-he has failed to rebut the presumption of Illinois citizenship. This failure renders him non-diverse from Defendants whom Plaintiff concedes are all citizens of IlIinois.41 B. Plaintiffs Complaint Could Have Been Filed in the Northern District of Illinois Based On Federal Question Jurisdiction. Concerning Defendants' argument that Plaintiff failed to establish federal question jurisdiction, [*121 the Court finds that Plaintiff alleged arguable federal claims sufficient to grant the Northern District of Illinois federal question subject matter jurisdiction. Defendants claim that the Northern District of Illinois would lack federal question jurisdiction because Plaintiff has failed to allege plausible federal . . claims.42 This line of reasoning, however, fails to correctly cite Plaintiffs burden in establishing subject matter jurisdiction based on a federal claim. In Steel Co. v. Citizens for a Better Environment, the Supreme Court opined that "the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction."43 Rather, the Court stated: Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy."44 The determination of claim's plausibility is therefore a 39 Amended Compl. 11113, 5, at 1-2. 40 1d 411d at 2. 42 See Bales Defs.' Brief at 11-15; Mann Defs.' Brief at 12-16 43 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89. 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) ("[J]urisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover."). 441d. (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666. 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974)) (emphasis added). Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 44 of 46 PageID: 1453 Mann v. BalesPage 5 of 6 separate inquiry and the Court must first ensure that it has subject matter jurisdiction prior to addressing 1*131 the merits of a claim.45 Here, Plaintiff alleges federal claims under both the TCPA and RICO, and thus two potential bases exist for federal question jurisdiction. This Court's analysis, therefore, will focus on whether these claims are "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Based on a review of the Plaintiffs Amended Complaint, this Court finds that Plaintiffs TCPA claim is not so devoid of merit so as to not involve a federal controversy.46 When presented with a pro se litigant such as Plaintiff, courts have a special obligation to construe his complaint liberally!" This Court must therefore liberally I*141 read Plaintiffs Amended Complaint to determine if it alleges arguable federal claims not completely devoid of merit. I find that Plaintiff has met this lessened burden. First, the Court notes that Plaintiff has cited law concerning both a TCPA claim and a civil RICO claim. He has further adduced facts in support of his TCPA claim which raise it beyond the mere frivolous to a level justifying a merits determination by a court with proper jurisdiction. In her Order of October 14, 2015, Magistrate Judge Schwab found that the TCPA claim within Plaintiff's original complaint failed to allege an "arguable" federal claim.48 She specifically stated, as justification for this finding, that Plaintiffs complaint "does not contain any allegations about telephone calls or fax messages."49 Plaintiff's amended complaint, filed on November 3, 2015, contains factual averments of both telephone calls and faxes messages by Defendants.50 These averments, added in accordance with Magistrate Judge Schwab's direction, raise at least an "arguable" TCPA claim necessary to bestow federal question jurisdiction.51 Second, I note, like the Report and Recommendation, that Plaintiffs potential lack of statutory standing under the TCPA does not implicate a lack of subject-matter jurisdiction.52 Such an allegation is more properly brought under Federal Rule of Civil Procedure 12(b)(6).5 Finally, the Court concludes that transfer is "in the interest of justice" as required by 28 U.S.C. § 1631. Plaintiff, a pro se prisoner, has yet to receive adjudication on the merits of his complaint. Transfer to a court with jurisdiction and one in which all defendants are domiciled-the Northern District of Illinois- is therefore necessary to provide parties both the benefit of litigation on the merits and the possibility of a final judgment. IV. CONCLUSION Based on the above discussion and analysis, the Court adopts in its [* 16] entirety the Report and Recommendation of Magistrate Judge Schwab. Defendants' Motions to Dismiss will be granted for lack of personal jurisdiction within the Commonwealth of Pennsylvania. Pursuant to 28 U.S.C. § 1631, Plaintiffs case will be transferred to the United States District Court for the Northern District of Illinois. An appropriate Order follows. BY THE COURT: /s/ Matthew W. Brann Matthew W. Brann United States District Judge ORDER 45Advanced Fluid Si's.. Inc. v. Huber, Civil Action No. 1:13-0/- 3087, 2014 US. .Dist. LEXIS 62799. 2014 WI, 1808652 at *5 (11,1.D.Pa. Mav 7, 20 /4)(Conner, C.J.)(citing Steel Co., 523 US. at 93-95). 461n so finding, the Court will not determine if Plaintiff's RICO claim is "arguable." Subject matter jurisdiction of the Northern District of Illinois is established by virtue of Plaintiffs arguable TCPA claim. 47 Higgs v. Airy. Gen. of the U.S.. 655 F.3d 333, 339 (3d Cir. 2011) (citing, inter alia, Estelle v. Gamble, 429 U.S. 97, 106, 97 S. C. 285, 50 L. Ed. 2d 251 (1976)). 48 Order (ECF No. 11), at 4-5. 49Id. s° Amended Compl. 5-7, at 2-4. 51 This determination does [*15] not foreclose the possibility that Plaintiffs claims nevertheless failed to meet the plausibility requirements set forth by the Supreme Court in Bell Atlantic Corp. v. Twomblv, 550 U.S. 544. 127 S. Ct. 1955. 167 L. Ed. 2d 929 (2007) and Ashcrofi A'. lobed 556 US. 662, 129 S. Ct. 1937, 173 L. Ed 2d 868 (2009). This decision on the merits would be appropriately decided by the Northern District of Illinois. 52 Leyse v. Bank of America Nat. Ass'n. 804 F.3d 316, 320 (3d Cir. 2015) (finding that "[s]tatutory standing goes to whether Congress has accorded a particular plaintiff the right to sue under a statute, but it does not limit the power of the court to adjudicate the case."). 5 3 I •t Id (citing Baldwin v. Univ. of Pittsburkh Med. Ctr., 636 .17:3d 69, 73-74 (3€1 Cir. 2011); Sullivan v. DB Invs., Inc., 667 F.3d 273. 307 (3d Cir. 2011)). Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 45 of 46 PageID: 1454 Mann v. BalesPage 6 of 6 AND NOW, in accordance with the Memorandum of this same date, IT IS HEREBY ORDERED THAT: 1. United States Magistrate Judge Susan E. Schwab's Report and Recommendation (ECF No. 85) is ADOPTED in its entirety. 2. Defendants Heather Bales and Mann Insurance Agency's Motion to Dismiss (ECF No. 30) is GRANTED based on this Court's lack of personal jurisdiction over Defendants. 3. Defendants George F. Mann, III, Julia A. Mann, Judson H. Mann, G.F. Mann Agency, Ltd. and Global Risk Services' Motion to Dismiss (ECF No. 35) is GRANTED based on this Court's lack of personal jurisdiction over Defendants. 4. Plaintiff's "Motion to Recall Plaintiffs Opposition Motion to Docs. 76 & 78" (ECF No. 92) is DENIED AS MOOT. Should he care to do so, Plaintiff is directed to re-file this Motion [*17] with United States District Court for the Northern District of Illinois. 5. Plaintiffs "Motion to Compel MinTrial, Mediation, or Arbitration" (ECF No. 99) is DENIED AS MOOT. Should he care to do so, Plaintiff is directed to re-file this Motion with the United States District Court for the Northern District of Illinois. 6. Pursuant to 28 U.S.0 § 1631, the Clerk of Courts is directed to transfer this case to United States District Court for the Northern District of Illinois. BY THE COURT: /s/ Matthew W. Brann Matthew W. Brann United States District Judge End of Document Case 3:17-cv-00800-FLW-LHG Document 46-5 Filed 03/09/17 Page 46 of 46 PageID: 1455 Page 1 2017 Mo. LEXIS 66, * 1 of 59 DOCUMENTS STATE EX REL. NORFOLK SOUTHERN RAILWAY COMPANY, Relator, vs. THE HONORABLE COLLEEN DOLAN, Respondent. No. SC95514 SUPREME COURT OF MISSOURI 2017 Mo. LEXIS 66 February 28, 2017, Opinion Issued NOTICE: NOT FINAL UNTIL EXPIRATION OF THE RE- HEARING PERIOD. PRIOR HISTORY: State ex rel. Norfolk Southern Ry. v. Dolan, 2016 Mo. LEXIS 396 (Mo., Apr. 5, 2016) COUNSEL: [*1] Norfolk Southern was represented by Kurt E. Reitz and Erik P. Lewis of Thompson Coburn LLP in Belleview, Illinois, and Booker T. Shaw of Thompson Coburn LLP in St. Louis. Russell Parker was represented by Edward D. Robertson Jr., Anthony L. DeWitt and Mary D. Winter of Bartimus, Frickleton and Robertson PC in Jefferson City, and Eric Holland and Carl Kessinger of the Holland Law Firm in St. Louis. JUDGES: LAURA DENVIR STITH, JUDGE. Brecken- ridge, C.J., Fischer, Draper, Wilson and Russell, JJ., concur. OPINION BY: LAURA DENVIR STITH OPINION en banc Original Proceeding in Prohibition Norfolk Southern Railway Company, a Virginia corporation, seeks a writ of prohibition directing the trial court to dismiss the underlying personal injury action brought against it under the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51 et seq. Norfolk alleges Missouri has no personal jurisdiction over it where, as here, the injury occurred in Indiana to Russel Parker, an Indiana resident, as a result of his work for Norfolk in Indiana. This Court agrees that Missouri does not have spe- cific or general personal jurisdiction over Norfolk. Though Norfolk does own and operate on railroad tracks in Missouri, the personal injury action did not arise out of, and [*2] does not relate to, Norfolk's activities in Missouri, thereby depriving Missouri of specific juris- diction. A plaintiff may bring an action in Missouri on a cause of action unrelated to a corporation's Missouri ac- tivities if the corporation is incorporated in Missouri, has its principal place of business in Missouri, or in the ex- ceptional case when its contacts with Missouri are so extensive and all-encompassing that Missouri, in effect, becomes another home state. None of these requirements is met here. While Norfolk does substantial and contin- uous business in Missouri, it also conducts substantial and continuous business in at least 21 other states, and its Missouri business amounts to only about 2 percent of its total business. This is insufficient to establish general personal jurisdiction over Norfolk. This Court also rejects Parker's argument that, by complying with Missouri's foreign corporation registra- tion statute, Norfolk impliedly consented to general ju- risdiction in Missouri, as well as the argument that FELA provides an independent basis for jurisdiction over Nor- folk. Missouri's registration statute does not require for- eign corporations to consent to suit over activities [*3] unrelated to Missouri, and the cited FELA statute is a venue statute that does not provide an independent ground for jurisdiction of FELA cases in state courts that do not otherwise have personal jurisdiction over the de- Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 1 of 8 PageID: 1456 Page 2 2017 Mo. LEXIS 66, * fendant. The preliminary writ of prohibition is made permanent. I. FACTUAL AND PROCEDURAL BACKGROUND The underlying action is a personal injury FELA lawsuit filed in St. Louis County by Russell Parker, a resident of Indiana, against Norfolk, a Virginia corpora- tion with its principal place of business in Virginia. Par- ker alleges cumulative trauma injury sustained during his years of employment with Norfolk in Indiana. Norfolk annually complies with Missouri's foreign business registration statutes by registering with the state and designating an agent to receive service of process. §§ 351.574 et seq.1 Norfolk also has brought suit and been sued in Missouri courts numerous times, but only for matters arising from or related to its activities in Mis- souri. Parker never worked for Norfolk in Missouri. He does not allege any negligence or other conduct or omis- sion by Norfolk in Missouri caused the injury, nor does his petition set out any basis for specific or general per- sonal jurisdiction over [*4] Norfolk other than his statement that Norfolk conducts substantial business and owns property in Missouri. While the record shows that Norfolk's train tracks run through Missouri, it also shows that those tracks span at least 22 states, and that the por- tion of Norfolk's business conducted in Missouri is only about 2 percent of its nationwide business activity. 1 All statutory citations are to RSMo. 2000, unless otherwise indicated. Norfolk moved to dismiss for lack of personal juris- diction. After a hearing, the trial court overruled the mo- tion without stating the grounds for its ruling. Norfolk then filed a petition for a writ of prohibition or, in the alternative, a writ of mandamus in the Missouri Court of Appeals. That petition was denied, and Norfolk sought the same relief in this Court. This Court issued a prelim- inary writ of prohibition. Parker argues that Missouri has both general and specific jurisdiction over Norfolk and, alternatively, that Norfolk consented to personal jurisdiction by registering to do business in Missouri and appointing a Missouri agent for service of process, or that FELA confers spe- cific personal jurisdiction over a railroad in any state where the railroad owns or operates tracks. For the rea- sons set out below, this Court rejects [*5] these argu- ments, which often inappropriately blur the distinct bases on which each type of jurisdiction is based. Because the Court finds that none of the bases for jurisdiction alleged is supported by the record, the preliminary writ is made permanent. II. STANDARDS APPLICABLE TO ISSUANCE OF WRIT OF PROHIBITION This Court has discretion to issue and determine original remedial writs. Mo. Const. art. V, § 4.1. "Prohi- bition is the proper remedy to prevent further action of the trial court where personal jurisdiction of the defend- ant is lacking." State ex rel. William Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 137 (Mo. banc 1987) (is- suing a writ for the trial court's improper denial of a mo- tion to dismiss for lack of personal jurisdiction). "The extraordinary remedy of a writ of prohibition is availa- ble: (1) to prevent the usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to rem- edy an excess of authority, jurisdiction or abuse of dis- cretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted." State ex rel. Missouri Pub. Def. Comm'n v. Waters, 370 S.W.3d 592, 603 (Mo. banc 2012). However, prohibition is only proper "when usur- pation of jurisdiction ... is clearly evident." State ex rel. Tarrasch v. Crow, 622 S.W.2d 928, 937 (Mo. banc 1981).2 2 For a discussion of the distinction -- if any -- between writs of prohibition and mandamus as well as their historical origins, see State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 515-16 nn.1,2 (Mo. banc 2009), and State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 807 (Mo. banc 2015). III. THIS COURT DOES NOT HAVE PERSONAL JURISDICTION OVER NORFOLK [*6] A. General Principles Governing Personal Jurisdiction. Personal jurisdiction is the authority of a court over the parties in a particular case. State ex rel. Kansas City S. Ry. Co. v. Nixon, 282 S.W.3d 363, 365 (Mo. banc 2009); Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982). It is a due process requirement that limits the power of state courts over litigants. Daimler AG v. Bauman, 134 S. Ct. 746, 751, 187 L. Ed. 2d 624 (2014); Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231 (Mo. banc 2010). The basis of a court's personal jurisdiction over a corporation can be general -- that is, all-purpose jurisdiction -- or it can be specific -- that is, conduct-linked jurisdiction. Daimler, 134 S. Ct. at 751. Additionally, because personal jurisdiction is an indi- vidual right, a defendant may waive jurisdictional objec- tions by consenting to personal jurisdiction. State ex rel. Heartland Title Servs., Inc. v. Harrell, 500 S.W.3d 239, 241 (Mo. banc 2016). Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 2 of 8 PageID: 1457 Page 3 2017 Mo. LEXIS 66, * B. General Jurisdiction "When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the State has been said to be exercising 'general jurisdiction' over the de- fendant." Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 415 n.9, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984). In recent years, the Supreme Court has clarified the test for when the exercise of general juris- diction over a corporation comports with due process. Daimler, 134 S. Ct. at 754; Goodyear Dunlop Tires Op- erations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011). A court normally can exercise general jurisdiction over a corporation only when the corporation's place of incorporation or its prin- cipal place of business is in the forum state. Goodyear, 564 U.S. at 919; Daimler, 134 S. Ct. at 754.3 In "excep- tional cases," general [*7] jurisdiction may exist in an additional state if the corporation's activities in that other state are "so substantial and of such a nature as to render the corporation at home in that State." Daimler, 134 S. Ct. at 761 n.19. 3 The rule stems from the framework for gen- eral jurisdiction over natural persons: states may exercise general jurisdiction over natural persons who are domiciles of the state. Daimler 134 S. Ct. at 760. A corporation's equivalent of "domicile" includes its state of incorporation and the state where it has its principal place of business. Id. Parker argues that Norfolk's "continuous and sys- tematic" business in Missouri supports finding that Mis- souri has general jurisdiction over it even for cases not arising from its activities in Missouri. Prior to Daimler, this would have been a valid argument. State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 168-69 (Mo. banc 1999). But, it is no longer the law. In Daimler, the plaintiff similarly argued a large corporation's subsidiary conducting substantial and continuous business in the state as the state's largest seller of luxury cars was suffi- cient to establish jurisdiction. Daimler, 134 S. Ct. at 752, 758. The Supreme Court expressly rejected that argu- ment. While Daimler did substantial and continuous business in California, it did business throughout the United States and its California business constituted only 2.4 percent of its total sales. Id. at 752. The Supreme Court held that the mere conduct of these systematic and continuous business activities in the state was not suffi- cient to subject the corporation to general jurisdiction in the state for all causes of action not related to that state. [*8] Id. at 761. Brown v. Lockheed Martin Corp., 814 F.3d 619, 627-30 (2d Cir. 2016), applied Daimler's appraisal of a foreign corporation's forum activity to Lockheed, which was sued in Connecticut for a claim not connected in any way to its Connecticut activities. Lockheed was incorpo- rated and had its principal place of business in Maryland, but it registered to do business in Connecticut and com- plied with Connecticut's registration statutes requiring designation of an in-state agent to receive service of process. Id. at 622. Over the relevant time span, it gener- ated approximately $160 million in revenue and em- ployed between 30 and 70 people per year in Connecti- cut; maintained a physical presence in the state, includ- ing lease of a 9,000-square-foot building for at least 15 years; carried worker's compensation insurance and de- fended eight lawsuits in the state during the relevant time span. Id. at 622, 628 & n.9. Though Lockheed's Connecticut business was sub- stantial, it composed only a small portion of its overall business: for the relevant time period, only 0.05 percent of Lockheed's employees and no more than 0.107 percent of its total revenue came from its Connecticut activities. Id. at 629. The Second Circuit concluded, "Lockheed's contacts with Connecticut fall far short of the relation- ship [*9] that Due Process requires, under Daimler and Goodyear, to permit the exercise of general jurisdiction over Lockheed by Connecticut courts." Id. at 630. This analysis is directly applicable here. Norfolk owns or operates some 400 miles of track, generates ap- proximately $232 million in revenue, and employs some 590 people in Missouri. It has appointed a registered agent in Missouri. Yet this activity in Missouri represents a tiny portion of Norfolk's entire nationwide business. Norfolk generates only about 2 percent of its total reve- nues from its Missouri activities. It generates greater revenue in 11 other states. It has track in 22 states; only about 2 percent of the track it owns and 2 percent of the track it operates is in Missouri. Only about 2 percent of its total employees are in Missouri as well. Norfolk has more employees in each of 13 other states than it does in Missouri. Its Missouri contacts are insufficient to estab- lish general jurisdiction over Norfolk in Missouri under the principles set out in Daimler, 134 S. Ct. at 757. Parker notes that Norfolk has sued and been sued in Missouri courts in the past and that this constitutes a recognition of jurisdiction in Missouri courts. Parker also reiterates that Norfolk [*10] has many miles of track in Missouri and might be sued by Missouri residents, so Missouri is not an inconvenient or unexpected place for it to be sued, and, as such, Norfolk should be considered at home in Missouri. Parker's arguments blur the distinction between gen- eral and specific jurisdiction as well as between jurisdic- tion and venue. Id. The prior suits against Norfolk that Parker cites were suits based on specific jurisdiction be- cause they concerned injuries that occurred in Missouri Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 3 of 8 PageID: 1458 Page 4 2017 Mo. LEXIS 66, * or arose out of Norfolk's activities in Missouri. Consid- erations of convenience may also have made venue ap- propriate in particular Missouri courts for those suits. Nonetheless, the minimum contacts that suffice to pro- vide specific jurisdiction over such a particular Mis- souri-related lawsuit do not also confer general jurisdic- tion over a particular company for a non-Missouri-related lawsuit. Parker notes the Supreme Court recognized in Daimler that, in exceptional cases, a state may have gen- eral jurisdiction over a corporation not incorporated there and that has not located its principle place of business in that state. But the Supreme Court has made it clear that to be such "an exceptional case," the [*11] forum state must be a "surrogate for place of incorporation or home office" such that the corporation is "essentially at home" in that state. Daimler, 134 S. Ct. at 756 n.8, 761 n.19. To find a corporation is "essentially at home" requires com- paring the corporation's activities in the forum state with its activities in other states through "an appraisal of a corporation's activities in their entirety, nationwide and worldwide." Id. at 762 n.20. The Supreme Court ob- served that finding a corporation at home wherever it does business would destroy the distinction between general and specific jurisdiction, for "[a] corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, 'at home' would be synony- mous with 'doing business' tests framed before specific jurisdiction evolved in the United States." Id. For this reason, when "a corporation is neither incorporated nor maintains its principal place of business in a state, mere contacts, no matter how 'systematic and continuous,' are extraordinarily unlikely to add up to an 'exceptional case.'" Brown, 814 F.3d. at 629.4 4 The only example Daimler gave, or the United States Supreme Court has since given, is Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447, 72 S. Ct. 413, 96 L. Ed. 485, 63 Ohio Law Abs. 146 (1952), which it describes as the "textbook case of general jurisdiction" over a for- eign corporation. Daimler, 134 S. Ct. at 755-56. Benguet moved its headquarters to Ohio because the United States was at war with Japan, where its principal place of business normally was lo- cated. Id. at 756. Because the headquarters were moved, there was general jurisdiction in Ohio. Id. Here, the record shows that most of the other 21 states in which Norfolk conducts business have at least as much contact with it as does Missouri, in which [*12] only 2 percent of its business and employees are located. That this is still a large dollar amount of business does not make it a basis for finding that Missouri and these other 21 states are all "home" states for Norfolk. The nature of Norfolk's activities in Missouri are quite dis- tinct from the "nerve-center" of activities that the Su- preme Court has said might be sufficient to make a "home" state. See Hertz Corp. v. Friend, 559 U.S. 77, 92, 130 S. Ct. 1181, 175 L. Ed. 2d 1029 (2010). Norfolk's activities in Missouri are only a very small part of its overall activities, and not of the nature that makes Mis- souri its de facto principal place of business. Missouri courts may not assert general jurisdiction over Norfolk in the underlying case. C. Specific Jurisdiction Parker also argues that Missouri has specific juris- diction over Norfolk. Specific jurisdiction requires con- sideration of the "relationship among the defendant, the forum, and the litigation." Andra v. Left Gate Prop. Holding, Inc., 453 S.W.3d 216, 226 (Mo. banc 2015), quoting Walden v. Fiore, 134 S. Ct. 1115, 1121, 188 L. Ed. 2d 12 (2014). Daimler notes that specific jurisdiction "encompasses cases in which the suit arises out of or relates to the defendant's contacts with the forum." 134 S. Ct. at 748-49 (internal quotation and alterations omitted). Because Norfolk has purposefully availed itself of the opportunity to do business in Missouri, it would be sub- ject [*13] to specific jurisdiction in Missouri. But that jurisdiction would exist only over claims that are related to those contacts. See Andra, 453 S.W.3d at 227; Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 233-34 (Mo. banc 2010). Unrelated suits can be brought in the forum only when the forum has general jurisdic- tion.. Id. at 754; Andra, 453 S.W.3d at 227.5 5 The Supreme Court's explanation of the dif- ference between general and specific jurisdiction in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011), may be helpful: Endeavoring to give specific content to the "fair play and sub- stantial justice" concept, the Court in International Shoe classified cases involving out-of-state cor- porate defendants. First, as in In- ternational Shoe itself, jurisdiction unquestionably could be asserted where the corporation's in-state activity is "continuous and sys- tematic" and that activity gave rise to the episode-in-suit. 326 U.S., at 317, 66 S.Ct. 154. Further, the Court observed, the commission of certain "single or occasional acts" in a State may be sufficient to render a corporation answerable in Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 4 of 8 PageID: 1459 Page 5 2017 Mo. LEXIS 66, * that State with respect to those acts, though not with respect to matters unrelated to the forum connections. Id., at 318, 66 S.Ct. 154. The heading courts today use to encompass these two Interna- tional Shoe categories is "specific jurisdiction." ... Adjudicatory au- thority is "specific" when the suit "aris[es] out of or relate[s] to the defendant's contacts with the fo- rum." Helicopteros, 466 U.S., at 414, n. 8, 104 S.Ct. 1868. Goodyear, 564 U.S. at 923-24. By contrast, Goodyear said: International Shoe distin- guished from cases that fit within the "specific jurisdiction" [*14] categories, "instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely dis- tinct from those activities." 326 U.S., at 318, 66 S.Ct. 154. Adju- dicatory authority so grounded is today called "general jurisdiction." Helicopteros, 466 U.S., at 414, n. 9, 104 S.Ct. 1868. Id. at 924. For the reasons already discussed, Norfolk's contacts are not sufficient to establish general jurisdiction. Only if the instant suit arises out of Norfolk's contacts with Mis- souri does Missouri have specific jurisdiction. Parker pleaded no facts alleging that the injury arose from Nor- folk's Missouri activities. Therefore, the fact that he could sue in Missouri in a case in which the injury arose out of his contacts with Missouri does not support find- ing general personal jurisdiction here. Parker alternatively argues that Missouri has per- sonal jurisdiction over Norfolk because it does engage in railroad business in Missouri and the injuries arose out of railroad business conducted by Norfolk in Indiana, so the injuries in Indiana were injuries "arising from or related to" the same "type" of activities as Norfolk's Missouri activities. While Parker cites cases utilizing a variety [*15] of tests for determining when a specific injury "arises from or relates to" the defendant's activity in the forum state -- tests ranging from but-for causation to proximate cause -- none support the proposition that, if a company is a national company that does the same "type" of business in the forum state as in the rest of the country, it can be sued anywhere. Just because a company like Ford, for example, sells cars in Iowa and in California, does not mean there is jurisdiction in California for injuries that occurred in Iowa simply because Ford engages in the same "type" of activity -- selling cars -- in both states. Such an argument goes even further than the pre-Daimler approach to general jurisdiction that Daim- ler rejected as providing no authority for general juris- diction over a company. To say this same conduct con- fers specific jurisdiction over suits the facts of which have no relationship to the forum state would be to turn specific jurisdiction on its head. There would never be a need to discuss general jurisdiction, for every state would have specific jurisdiction over every national business corporation. Parker does not cite a single case to support his theory, which would [*16] completely do away with the distinction between general and specific jurisdiction and would undermine Daimler's test for general jurisdic- tion. Parker further argues that FELA itself provides spe- cific jurisdiction any place a railroad corporation has tracks. The relied-upon provision in FELA does not even purport to confer personal jurisdiction. Venue refers to where suit may be brought and not the power of the court over defendants, and the first part of the provision has long been characterized by the United States Supreme Court as "the venue provisions of [FELA]." Pope v. At- lantic C. L. R. Co., 345 U.S. 379, 380, 383, 73 S. Ct. 749, 97 L. Ed. 1094 (1953). It provides: Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States. 45 U.S.C. § 56 (emphasis added). The final sentence of section 56 also does not ad- dress personal jurisdiction in state court. As the United States Supreme Court has explained, that sentence ad- dresses subject matter jurisdiction of state [*17] and Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 5 of 8 PageID: 1460 Page 6 2017 Mo. LEXIS 66, * federal courts over FELA suits, but it is not intended to enlarge personal jurisdiction: [W]e deem it well to observe that there is not here involved any attempt by Con- gress to enlarge or regulate the jurisdic- tion of state courts, or to control or affect their modes of procedure, but only a ques- tion of the duty of such a court, when its ordinary jurisdiction, as prescribed by lo- cal laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure. Second Employers' Liability Cases, 223 U.S. 1, 56-57, 32 S. Ct. 169, 56 L. Ed. 327 (1912). In other words, "FELA provides a regime of concurrent federal and state juris- diction, ... but this refers to subject matter jurisdiction. ... Nothing in the act addresses the matter of personal juris- diction in the state court." S. Pac. Transp. Co. v. Fox, 609 So.2d 357, 362-63 (Miss. 1992). Parker's broader reading of FELA relies largely on three cases from the 1930s, '40s and '50s that do not ac- tually discuss whether FELA confers personal jurisdic- tion. One is Pope, which was a venue case and did not address personal jurisdiction. Pope, 345 U.S. at 382-83. Miles v. Illinois Central Railroad Company, 315 U.S. 698, 62 S. Ct. 827, 86 L. Ed. 1129 (1942), also did not involve personal jurisdiction but rather "the burden of [*18] expense and inconvenience" and whether the railroad "must submit to inconvenience and expense, if there is jurisdiction, 'although thereby interstate com- merce is incidentally burdened.'" Id. at 700, 701-02 (emphasis added). It concludes "the right to sue in state courts of proper venue where their jurisdiction is ade- quate is of the same quality as the right to sue in federal courts." Id. at 704 (emphasis added). Denver & Rio Grande Western Railroad Company, v. Terte, 284 U.S. 284, 52 S. Ct. 152, 76 L. Ed. 295 (1932), discusses "ju- risdiction," but its primary issue was whether allowing the suit to go forward in state court would put an undue burden on interstate commerce. Id. at 285.6 The cases cited by Parker do not support the exercise of specific jurisdiction here. 6 Even if these cases were applying old con- cepts of "jurisdiction," the conclusion that FELA provides general jurisdiction over railroad com- panies any place they have tracks appears to be inconsistent with Daimler's rejection of doing business as a basis for jurisdiction. D. Consent by Registration Parker argues in the alternative that Norfolk con- sented to personal jurisdiction over any case filed against it in Missouri by complying with Missouri's foreign cor- poration registration statutes,7 obviating the need to meet the criteria for general or specific jurisdiction. In partic- ular, he relies on section 506.150.1(3), which provides in relevant part that service shall be had "[u]pon a domestic or foreign corporation ... by delivering a copy ...to any other agent authorized by appointment or required by law to receive service of process," in combination [*19] with section 351.594.1, which provides in relevant part that "[t]he registered agent of a foreign corporation au- thorized to transact business in this state is the corpora- tion's agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation." Parker argues that by registering to do business in Missouri and appointing a registered agent, Norfolk consented through the application of these stat- utes to jurisdiction in Missouri over any cause of action against Norfolk, regardless whether the cause is related to Missouri and whether Missouri otherwise would have jurisdiction over Norfolk in those suits. In support, Par- ker cites a pair of cases decided in 1917 and 1939, hold- ing that registration constitutes consent.8 7 The foreign corporation registration require- ments are in sections 351.574 et seq. Some of the key provisions are section 351.572 (prohibiting foreign corporations from doing business in Mis- souri without obtaining a certificate of authority); section 351.576 (describing the requirements for application for such a certificate); section 351.582 (stating the effects of issuing a certificate of authority: the foreign corporation may do business here, but that authority is revocable, and Missouri cannot regulate internal workings of the foreign corporation); section 351.586 (describing the agent designation requirements); section 351.594 (declaring that service "permitted by law to be served on the foreign corporation" is to be made on the registered agent). 8 Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95, 37 S. Ct. 344, 61 L. Ed. 610 (1917); Neirbo Co. v. Bethle- hem Shipbuilding Corp., 308 U.S. 165, 175, 60 S. Ct. 153, 84 L. Ed. 167 (1939). Norfolk notes, in Genuine Parts Company v. Cepec, 137 A.3d 123, 147 n.125 (Del. 2016), Delaware recently held that, as every state requires a foreign corporation doing substantial business in a state to register under the Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 6 of 8 PageID: 1461 Page 7 2017 Mo. LEXIS 66, * foreign corporation statutes and appoint an agent for ser- vice of process, id. at 125 n.1, a broad inference of con- sent based on registration would allow national corpora- tions to be sued in every state, rendering Daimler point- less, id. at 126.9 9 Accord, Neeley v. Wyeth LLC, No. 4:11-CV-00325-JAR, 2015 U.S. Dist. LEXIS 39879, 2015 WL 1456984 (E.D. Mo. Mar. 30, 2015); Keeley v. Pfizer Inc., No. 4:15CV00583 ERW, 2015 U.S. Dist. LEXIS 85282, 2015 WL 3999488 (E.D. Mo. July 1, 2015). [*20] Nor- folk also argues that, in the light of today's global economy, to say that registering to do business is conditioned on implied consent to be sued for unrelated matters likely violates "the unconstitu- tional conditions doctrine," which "forbids [statesfrom] burdening the Constitution's enu- merated rights by coercively withholding benefits from those who exercise them." Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2595, 186 L. Ed. 2d 697 (2013). Even before Daimler, in Holliger, 986 S.W.2d at 165-66, this Court noted there was a split of authority as to whether a registration statute constitutionally can re- quire consent to general jurisdiction in order to register to do business in a state. Id. at 169 n.4. Holliger did not resolve that issue because it was not necessary to do so on the facts of that case. Similarly, here, this Court finds there is no need to determine whether Missouri's registration statutes con- stitutionally could condition doing business in Missouri on consent to general jurisdiction. The extent of any consent inferred from a registration statute "is a question of interpretation of the instrument in which the consent is expressed and of the statute, if any, in pursuance of which the consent is given." Restatement (Second) of Conflict of Laws § 44 (1971), comment c. The plain lan- guage of Missouri's registration statutes does not mention consent to personal jurisdiction for unrelated claims, nor does it purport to provide an independent basis for juris- diction over foreign corporations that register in Mis- souri. Rather, section 351.594.1 provides the type of ser- vice an agent for service of process can receive, stating, "The registered agent of a foreign corporation authorized to transact business in this state is the corporation's [*21] agent for service of process, notice, or demand required or permitted by law to be served on the foreign corpora- tion." (Emphasis added). That begs the question as to what type of service is required or permitted by law on foreign corporations. Missouri permits service on resi- dent defendants, and on a corporation's agent for service of process, section 506.150.1(3), and Missouri's long-arm statute, section 506.500, permits service on defendants for causes of action arising out of their activi- ties in Missouri, but neither these nor other Missouri statutes provide that suit may be brought in Missouri against non-resident corporations for suits unrelated to the corporation's activities in this state.10 As section 351.594.1 provides only that registration is consent to service of process that Missouri requires or permits to be served on foreign corporations, the registration statute does not provide an independent basis for broadening Missouri's personal jurisdiction to include suits unrelated to the corporation's forum activities when the usual bases for general jurisdiction are not present. To the extent the holdings or dicta in prior cases suggest otherwise, they go beyond the language of the relevant statutes and should no longer be followed. [*22] 11 10 Prior to 1990, Missouri provided that busi- nesses that did not register to do business in Missouri would nonetheless be considered to have consented to suit in Missouri for torts aris- ing out of their activities in Missouri. Section 351.633, RSMo 1978, stated: If a foreign corporation com- mits a tort, excepting libel and slander, in whole or in part in Missouri against a resident or nonresident of Missouri, such act shall be deemed to be doing busi- ness in Missouri by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the sec- retary of state of Missouri and his successors to be its agent and rep- resentative to accept service of any process in any actions or proceed- ings against the foreign corpora- tion arising from or growing out of the tort. ... § 351.633, RSMo 1978 (emphasis added). Section 351.633 was repealed in 1990 when the legisla- ture overhauled much of chapter 351. L. 1990 H.B. 1432. The 1990 changes also moved the sections requiring designation of the agent and service of process on the designated agent to their current enumerations, sections 351.586 and 351.594, respectively, and they have remained relatively unchanged. The requirement of foreign corporations to register and designate an agent to receive service of process dates back to at least 1943. From at least that point, the provision for service has been limited to that "required or per- Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 7 of 8 PageID: 1462 Page 8 2017 Mo. LEXIS 66, * mitted by law to be served on a foreign corpora- tion." L. 1943 p. 465 §§ 103, 105. 11 See, e.g., State ex rel. Bloomquist v. Schneider, 244 S.W.3d 139 (Mo. banc 2008) quoting Bendix Autolite Corp. v. Midwesco En- terprises, Inc., 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988), for the assumption that a registration statute confers general jurisdiction without examination of whether Missouri's par- ticular language does so; Gold Issue Min. & Mill. Co. v. Pennsylvania Fire Ins. Co., 267 Mo. 524, 184 S.W. 999 (1916), aff'd, 243 U.S. at 94 (1917), overruled in part, State ex rel. American Cent. Life Ins. Co. v. Landwehr, 318 Mo. 181, 300 S.W. 294 (Mo. banc 1927); McNichol v. U.S. Mercan- tile Reporting Agency, 74 Mo. 457 (Mo. 1881) (interpreting prior version of statute which did not contain language "required or permitted by law to be served on the foreign corporation"). In- terestingly, Gold Issue is the case that held regis- tration constitutes consent by a foreign insurer to suit even on unrelated causes of action, and it was the case on which certiorari was granted resulting in the Supreme Court's opinion in Pennsylvania Fire, holding such a statute is not inherently un- constitutional. Pennsylvania Fire made clear it simply accepted Missouri's interpretation of its own statute as allowing such broad jurisdiction over foreign insurers, without independently ex- amining whether that statute actually made regis- tration consent to general jurisdiction. Id. But Gold Issue specifically was overturned on this precise point by American Central, which held that a foreign insurer's registration constituted consent only to suit on related claims. While the latter case was overruled in part on a related issue by State ex rel. Phoenix Mut. Life Ins. Co. of Hartford v. Harris, 343 Mo. 252, 121 S.W. 2d 141 (Mo. banc 1928), its holding that consent was given only to suits growing out of Missouri contracts was reaffirmed. Id. at 147. IV. CONCLUSION For these reasons, the Court concludes the circuit court lacks personal jurisdiction over Norfolk in the un- derlying personal injury action. The writ is made perma- nent. LAURA DENVIR STITH, JUDGE Breckenridge, C.J., Fischer, Draper, Wilson and Russell, JJ., concur. Case 3:17-cv-00800-FLW-LHG Document 46-6 Filed 03/09/17 Page 8 of 8 PageID: 1463 7659111 v1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION IN RE: JOHNSON & JOHNSON TALCUM PRODUCTS MARKETING, SALES PRACTICES & PRODUCTS LIABILITY LITIGATION JANICE BAHMLER, et al Plaintiff, v. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES INC.; IMERYS TALC AMERICA, INC., JOHN DOES/JANE DOES 1-30 and UNKOWN BUSINESSES AND/OR CORPORATIONS A-Z Defendants. MDL No. 2738 ORDER Civil Action No. 3:17-cv-00800 (FLW) (LHG) Document Filed Electronically THIS MATTER having been brought before the Court by way of motion of Coughlin Duffy LLP, counsel for defendant Imerys Talc America, Inc. (“Defendant”), for an Order dismissing Plaintiffs’ Claims for lack of personal jurisdiction; and the Court having considered the papers submitted; and the Court having heard the arguments of counsel, if any; and for good cause shown; IT IS ORDERED that Plaintiffs’ Complaint in the Janice Bahmler, et al. matter is hereby dismissed. _________________________________ , J.S.C. [ ] Opposed HONORABLE FREDA L. WOLFSON, U.S.D.J. [ ] Unopposed Case 3:17-cv-00800-FLW-LHG Document 46-7 Filed 03/09/17 Page 1 of 1 PageID: 1464