Campbell v. Bristol-Myers Squibb Company et al

MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative, to Transfer

N.D. Cal.May 26, 2017

NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DONALD F. ZIMMER, JR. (Bar No. 112279) fzimmer@kslaw.com WILLIAM E. STEIMLE (Bar No. 203426) wsteimle@kslaw.com King & Spalding LLP 101 Second Street, Suite 2300 San Francisco, CA 94105 Telephone: +1 415 318 1200 Facsimile: +1 415 318 1300 Attorneys for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; AND MCKESSON CORPORATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TONY CAMPBELL, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; and McKESSON CORPORATION Defendants. Case No. 3:17-cv-1872-JST NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) Date: July 6, 2017 Time: 2:00 p.m. Judge: Hon. Jon S. Tigar Courtroom: 9 Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 1 of 24 i NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES .................................................................4 I. INTRODUCTION .....................................................................................................................4 II. BACKGROUND .......................................................................................................................5 III. ARGUMENT .............................................................................................................................6 A. Personal jurisdiction exists only in a forum where the defendant is “at home” or where a defendant’s contacts with the forum are the cause of the plaintiff’s injuries..................................................................................................................................6 1. The Supreme Court’s decisions in Goodyear and Daimler foreclose general jurisdiction over BMS and AstraZeneca because they are not at home in California .......................................................................................................................7 2. This Court also lacks specific jurisdiction over plaintiff’s claims .................................8 a. Plaintiff’s claims do not arise out of BMS and AstraZeneca’s California contacts ....................................................................................................................9 b. Plaintiff cannot establish personal jurisdiction over BMS and AstraZeneca by naming a California corporation as a co-defendant ..........................................12 B. In the alternative, this case should be transferred to the Middle District of Tennessee ...........................................................................................................................12 1. This case should be transferred to plaintiff’s home state of Tennessee for the convenience of witnesses and the parties, and to allow a court familiar with controlling law to preside over the case. ......................................................................13 a. Transfer is in the interest of the parties and witnesses. ..........................................13 b. Transfer will serve the interest of justice. ..............................................................16 IV. CONCLUSION ........................................................................................................................18 Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 2 of 24 ii NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174 (9th Cir. 2004) .................................................................................................12 In re Air Crash Over the Taiwan Straits on May 25, 2002, 331 F.Supp.2d 1176 (C.D. Cal. 2004) .....................................................................................17 Bauman v. DaimlerChrysler Corp., 644 F.3d 909 (9th Cir. 2011) .....................................................................................................7 Bristol-Myers Squibb Company v. Superior Court, 1 Cal.5th 783 (2016), cert. granted....................................................................................10, 11 Cordoza v. T-Mobile U.S.A. Inc., No. 08-5120 SC, 2009 WL 723843 (N.D. Cal. 2009).............................................................12 Costco Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F. Supp. 2d 1183 (S.D. Cal. 2007) ..............................................................................12, 13 Daimler AG v. Bauman 571 U.S. ___, 134 S. Ct. 746 (2014) ..............................................................................1, 4, 7, 8 Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280 (9th Cir. 1977) .................................................................................................11 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834 (9th Cir. 1986) ...................................................................................................13 Fabus Corp. v. Asiana Exp. Corp., No. C-00-3172 PJH, 2001 WL 253185 (N.D. Cal. 2001) .......................................................17 Flotsam of Cal., Inc. v. Huntington Beach Conf. & Visitors Bureau, No. C 06-7028 MMC, 2007 WL 1152682 (N.D. Cal. Apr. 18, 2007) ....................................13 Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016) ..........................................................................................................8 Goodyear Dunlop Tires Operations, S.A. v. Brown 131 S. Ct. 2846 (2011) .....................................................................................................7, 8, 10 Grossman v. Johnson & Johnson, 2015 WL 1743116 (N.D. Cal. 2015) .................................................................................14, 15 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), superseded by statute on other grounds ....................................15, 16, 17 Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 3 of 24 iii NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Helicopteros Nacionales de Colombia, S.A. v. Hall 466 U.S. 408 (1984) ...................................................................................................................9 Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) ...................................................................................................13 Menken v. Emm, 503 F.3d 1050 (9th Cir. 2007) ...........................................................................................1, 4, 9 Motus v. Pfizer Inc., 358 F.3d 659 (9th Cir. 2004) ...................................................................................................14 Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) ...................................................................................................7 Prime Healthcare Centinela, LLC, et al. v. Kimberly-Clark Corporation, 2016 WL 7177532 (C.D. Cal. 2016) ........................................................................................12 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) ...................................................................................................7 Royal Queentex Enterprises v. Sara Lee Corp., No. C-99-4787 MJ, 2000 WL 246599 (N.D. Cal. 2000) ........................................................17 Saleh v. Titan Corp., 361 F. Supp. 2d 1152 (S.D. Cal. 2005) ....................................................................................13 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) .....................................................................................................9 Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309 (9th Cir. 1985) .................................................................................................13 Smith v. Pfizer Inc., 688 F.Supp.2d 735 (M.D. Tenn. 2010) ....................................................................................14 Stanley v. Novartis Pharmaceuticals Corp., 11 F. Supp. 3d 987, 1002 (C.D. Cal. 2014 ...............................................................................14 Sullivan v. Ford Motor Co., No. 16-cv-03505-JST, 2016 WL 6520174 (N.D. Cal. Nov. 3, 2016) ......................................11 Van Schijndel v. Boeing Co., 434 F.Supp.2d 766 (N.D. Cal. 2006) .......................................................................................15 Walden v. Fiore 134 S.Ct. 1115 (2014) ................................................................................................................8 Watkins v. Sowders, 449 U.S. 341 (1981) .................................................................................................................15 Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 4 of 24 iv NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 World-Wide Volkswagen Corp. v. Woodson 444 U.S. 286 (1980) .........................................................................................................8, 9, 12 Statutes 28 U.S.C. ..........................................................................................................................................1 28 U.S.C. § 1404(a) ............................................................................................................... passim Cal. Civ. Proc. Code § 410.10 .........................................................................................................7 Other Authorities Wright, 15 Fed. Prac. & Proc. Juris. 3854 (3d ed.) ........................................................................16 Fed.R.Civ.P. 4(k)(1)(A) ...................................................................................................................7 Fed.R.Civ.P Rule 12(b)(2) ...............................................................................................................1 U.S. Const. amend. XIV ..................................................................................................................6 15 Wright, Miller & Cooper, Federal Practice & Procedure, § 3854 (3d ed.) ...............................13 Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 5 of 24 1 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 6, 2017 at 2:00 p.m., in Courtroom 9 of the United States District Court, Northern District of California, located at 450 Golden Gate, 19th Floor, San Francisco, California 94102, Defendants AstraZeneca Pharmaceuticals LP (AstraZeneca) and Bristol-Myers Squibb Company (BMS) will, and hereby do, move the Court to dismiss plaintiff Tony Campbell’s complaint pursuant to Federal Rules of Civil Procedure, Rule 12(b)(2). The bases for this motion to dismiss for lack of personal jurisdiction are as follows: This Court lacks general jurisdiction over BMS and AstraZeneca because neither BMS nor AstraZeneca are “at home” in California. See Daimler AG v. Bauman 571 U.S. ___, 134 S. Ct. 746 (2014). BMS is a Delaware corporation with its principal place of business in New York, New York. AstraZeneca is a Delaware limited partnership with its principal place of business in Wilmington, Delaware. Neither BMS nor AstraZeneca has ever been incorporated or organized under the laws of California or maintained its principal place of business here. This Court lacks specific jurisdiction over BMS and AstraZeneca because plaintiff’s claims do not arise from any of their activities within California. The Ninth Circuit interprets the “arising from” requirement for specific jurisdiction to impose a causal connection between a defendant’s forum-state contacts and a plaintiff’s claims. Under this standard, a defendant’s forum-state contacts must be the “but for” cause of a plaintiff’s injuries. See Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007). Plaintiff does not allege that he was prescribed the drugs at issue (Onglyza and Kombiglyze) in California, that he ingested either drug in California, or that he suffered any injury in California. Thus, his alleged ingestion and injury would still have occurred even if the contacts of BMS and AstraZeneca with California never existed. Accordingly, this Court should dismiss plaintiff’s complaint against BMS and AstraZeneca. In the alternative, AstraZeneca, BMS, and McKesson Corporation (McKesson) move for an order transferring plaintiff’s case pursuant to 28 U.S.C. § 1404(a) to the United States District Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 6 of 24 2 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court for the Middle District of Tennessee, which, upon information and belief, is the judicial district where plaintiff resided at the time of his alleged treatment and injury. The bases for this motion to transfer are as follows: The case involves one plaintiff who resides in Tennessee. Plaintiff has no connection to the Northern District of California. He alleges he sought treatment, was prescribed Onglyza, ingested Onglyza, and was injured in Tennessee. Thus, the documents, records, and witnesses (including plaintiff’s prescribing and treating doctors) relevant to plaintiff’s claims are located in Tennessee. As the events giving rise to plaintiff’s claims occurred in Tennessee, each cause of action will be governed by Tennessee law. The interests of justice and judicial efficiency strongly favor this Court transferring this case so that it might be litigated in the judicial district where plaintiff resides. Such transfer would conserve judicial resources and avoid inconsistent rulings by ensuring that plaintiff’s case is litigated in a court familiar with governing law, near the relevant documents, and with subpoena power over the critical non-party witnesses. For these reasons, a California court recently granted forum non conveniens motions under a substantially similar standard as 28 U.S.C. § 1404(a) in two Onglyza® cases filed by the same plaintiffs’ counsel and which alleged similar injuries and claims as in the instant action. Given the early stage of this case, trial will in no way be hindered or delayed if the case is transferred at this time to the appropriate district court. Rather, transfer at this point will result in significant discovery and case management benefits through reduced costs and easier access to evidence. Accordingly, this Court should transfer plaintiff’s case to the Middle District of Tennessee. Such a ruling would benefit the courts, parties, and witnesses, and would further the interest of justice. This motion is based on this Notice of Motion; the accompanying Memorandum in Support of the Motion; the accompanying Declaration of William E. Steimle; the Court’s records and files in this case; and any evidence received at the hearing. Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 7 of 24 3 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: May 26, 2017 KING & SPALDING LLP By: /s/ WILLIAM E. STEIMLE ___________ DONALD F. ZIMMER, JR. WILLIAM E. STEIMLE Attorneys for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; AND MCKESSON CORPORATION Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 8 of 24 4 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This Court lacks personal jurisdiction because AstraZeneca Pharmaceuticals LP (AstraZeneca) and Bristol-Myers Squibb Company (BMS) are both out-of-state defendants and plaintiff Tony Campbell’s claims do not arise from Defendants’ conduct within California. This Court lacks general personal jurisdiction over BMS and AstraZeneca because neither defendant is “at home” in California. In Daimler AG v. Bauman, the Supreme Court of the United States held that continuous and systematic contacts with a state are not sufficient for general jurisdiction. Rather, general jurisdiction is proper over a company only in the state where that company is “at home.” Absent extraordinary circumstances not present here, a company is “at home” only where it is incorporated or maintains its principal place of business. BMS is a Delaware corporation with its principal place of business in New York, New York. AstraZeneca is a Delaware limited partnership with its principal place of business in Wilmington, Delaware. None of AstraZeneca’s limited or general partners are domiciled in California, and the Complaint makes no allegation otherwise. Neither BMS nor AstraZeneca has ever been incorporated or organized in California or maintained its principal place of business here. This Court also lacks specific jurisdiction over BMS and AstraZeneca because plaintiff’s claims do not arise from any of their activities within California. The Ninth Circuit interprets the “arising from” requirement for specific jurisdiction to require a causal connection between a defendant’s forum-state contacts and a plaintiff’s claims. See Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007). Under this standard, a defendant’s forum-state contacts must be the “but for” cause of a plaintiff’s injuries. Ibid. Plaintiff does not allege that he was prescribed the drugs at issue (Onglyza and Kombiglyze) in California, that he ingested either drug in California, or that he suffered any injury in California. He alleges no causal connection between any alleged California activity and his injury. Instead, plaintiff appears to believe jurisdiction is proper simply because BMS and AstraZeneca conduct business in California. Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 9 of 24 5 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 But conducting business in a state without any causal connection between the in-state activities and allegations in the lawsuit is not enough to confer jurisdiction over an out-of-state defendant. Nor may plaintiff create jurisdiction over BMS and AstraZeneca by naming McKesson as a co- defendant. Personal jurisdiction must be established for each defendant and for the claims of each plaintiff. When the plaintiff, the defendant, the injury, and the alleged conduct giving rise to it are all outside of California, a California court has no jurisdiction over the claim. In the alternative, BMS, AstraZeneca, and McKesson (collectively, Defendants) move to transfer this case to the United States District Court for the Middle District of Tennessee because plaintiff resides in Tennessee and has no connection with the Northern District of California.1 Transfer of this case to the jurisdiction of plaintiff’s residence will ensure that the case is heard in a district court that is familiar with the governing state law, and that is located where the relevant documents, records, and witnesses-including plaintiff and his individual prescribing and treating doctors-actually reside. On these grounds, a California court granted forum non conveniens motions under a substantially similar standard as 28 U.S.C. § 1404(a) in two Onglyza® cases filed by the same plaintiffs’ counsel and which alleged similar injuries and claims as in the instant action.2 Other plaintiffs in California state court who are represented by the same counsel as here also agreed to dismiss non-resident-plaintiffs subsequent to the California court’s FNC ruling.3 Despite this, counsel for plaintiff continues to file cases involving non-resident defendants in the Northern District of California. Because transfer is appropriate under relevant federal law and is in the best interest of the Court and parties, Defendants respectfully request that this Court transfer this case to the Middle District of Tennessee in the event this Court denies Defendant’s motion to dismiss. II. BACKGROUND Plaintiff Tony Campbell is a citizen and resident of Tennessee. See Complaint, Steimle 1 Plaintiff’s complaint does not identify his county of residence. Defendants allege upon information and belief that plaintiff resides in Rutherford County-thus, the Middle District of Tennessee is the proper venue for his claims. 2 See Exhibit B to the Declaration of William E. Steimle (Steimle Decl.). 3 Steimle Decl., Ex. C. Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 10 of 24 6 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decl., Ex. A, ¶ 7. Plaintiff’s Complaint-filed on April 4, 2017-alleges that he was damaged as a result of alleged treatment with Onglyza or Kombiglyze XR, drugs that are FDA-approved to treat type-2 diabetes mellitus. While he filed his claims in California, he does not allege any connection to the state. The Complaint alleges that “Defendant Bristol-Myers Squibb Company (“BMS”) is a Delaware corporation with its principal place of business at 345 Park Avenue, New York, NY 08540,” and that “Defendant AstraZeneca Pharmaceuticals LP (“AZ”) is a Delaware limited partnership with its principal place of business at 1800 Concord Pike, Wilmington, DE 19850.” Steimle Decl., Ex. A, ¶¶ 9,10. 4 Plaintiff also names McKesson Corporation, a Delaware corporation with its principal place of business in San Francisco, California as a defendant. Id. at ¶ 11. In asserting that personal jurisdiction exists over BMS and AstraZeneca, the Complaint alleges that BMS and AstraZeneca “conducted business and derived substantial revenue from its manufacturing, advertising, distributing, selling, and marketing of [Onglyza and Kombiglyze] within the state of California.” Id. at ¶¶ 9-10. Plaintiff asserts that BMS and AstraZeneca are “authorized to conduct or engage in business within the State of California” and that jurisdiction exists over both entities because they “committed a tort in whole or in part in the state of California and have regular and continuing contacts with California.” Id. at ¶¶ 16, 20. However, the complaint does not allege a causal relationship between these alleged activities of BMS and AstraZeneca in California and plaintiff’s claimed injury that occurred in Tennessee. III. ARGUMENT A. Personal jurisdiction exists only in a forum where the defendant is “at home” or where a defendant’s contacts with the forum are the cause of the plaintiff’s injuries The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” (U.S. Const. amend. XIV.) “A state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, and is 4 AstraZeneca notes that none of its limited or general partners are domiciled in California, and the Complaint makes no allegation otherwise. Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 11 of 24 7 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 therefore subject to review for compatibility with the” Due Process Clause, which “sets the outer boundaries of a state tribunal’s authority to proceed against a defendant.” Goodyear Dunlop Tires Operations, S.A. v. Brown 131 S. Ct. 2846, 2850, 2853 (2011). When there is no applicable federal statute governing personal jurisdiction, as here, the district court applies the law of the state in which the district court sits. See Fed.R.Civ.P. 4(k)(1)(A); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). The California long-arm statute “permits the exercise of personal jurisdiction to the full extent permitted by due process.” Bauman v. DaimlerChrysler Corp., 644 F.3d 909, 919 (9th Cir. 2011) (quoting Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000), rev’d on other grounds by Daimler AG v. Bauman 134 S. Ct. 746, 754 (2014); see Cal. Civ. Proc. Code § 410.10 (“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”) The United States Supreme Court has identified two categories of personal jurisdiction: “general or all-purpose jurisdiction, and specific or conduct-linked jurisdiction.” Daimler, 134 S. Ct. at 751. Plaintiff cannot meet his burden of establishing facts showing the proper exercise of jurisdiction under either category. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002) (Although the defendant is the moving party on a motion to dismiss [for lack of personal jurisdiction], the plaintiff bears the burden of establishing that jurisdiction exists.”) 1. The Supreme Court’s decisions in Goodyear and Daimler foreclose general jurisdiction over BMS and AstraZeneca because they are not at home in California In Goodyear and Daimler, the U.S. Supreme Court held that a corporation normally is subject to general jurisdiction only in the states where it is incorporated or maintains its principal place of business. It is not enough that a corporation conducts business-even substantial business-within a given state. Rather, the corporation’s contacts with the state must rise to a level that renders it essentially “at home” there. Daimler, supra, 134 S. Ct. at 761. BMS and AstraZeneca are not incorporated or organized under the laws of California, Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 12 of 24 8 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 neither maintains its principal place of business here, and plaintiff does not contend otherwise. See Complaint, Steimle Decl., Ex. A, ¶¶ 9-11. After Goodyear and Daimler, that is enough to foreclose general jurisdiction. While BMS and AstraZeneca conduct business in all fifty states, a company “that operates in many places can scarcely be deemed at home in all of them.” Daimler, supra, 134 S. Ct. at 762 n.20; see also Genuine Parts Co. v. Cepec, 137 A.3d 123, 143-144 (Del. 2016) (“Daimler rejected the notion that a corporation that does business in many states can be subject to general jurisdiction in all of them.”) If simply conducting business within a state were enough for general jurisdiction, then a plaintiff could sue “in every State in which a corporation engages in a substantial, continuous, and systematic course of business.” Daimler, supra, 134 S. Ct. at 761. But the Daimler Court rejected that result and its underlying theory as “unacceptably grasping.” Ibid. 2. This Court also lacks specific jurisdiction over plaintiff’s claims The Due Process Clause also prohibits this Court from exercising specific jurisdiction over plaintiff’s claims. Specific jurisdiction is appropriate only when “the suit ‘aris[es] out of or relate[s] to the defendant’s contacts with the forum.’” Daimler, supra, 134 S. Ct. at p. 754 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall (1984) 466 U.S. 408, 414 n.8). “Due process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant-not the convenience of plaintiffs or third parties.” Walden v. Fiore 134 S.Ct. 1115, 1122 (2014). These limits are necessary to “ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen Corp. v. Woodson 444 U.S. 286, 292 (1980). “‘[T]he Framers . . . intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all of its sister States.’” Id. at 293. The United States Supreme Court has “never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and remain faithful to the principles of Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 13 of 24 9 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interstate federalism embodied in the Constitution.” Ibid. Thus, “‘the relationship among the defendant, the forum, and the litigation’ is the essential foundation” of personal jurisdiction. Helicopteros, supra, 466 U.S. at 414 (quoting Shaffer v. Heitner (1977) 433 U.S. 186, 204). Courts in the Ninth Circuit apply a three-part test to determine whether a district court may exercise specific personal jurisdiction over a nonresident defendant: 1) Did the non-resident defendant “purposefully direct” its activities to the forum or a resident of the forum state, or perform some act by which it “purposefully availed” itself of “the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws?” 2) Does the claim “arise[] out of or relate[] to the defendant’s forum-related activities?” 3) Would the exercise of jurisdiction “comport with fair play and substantial justice (in other words, would it be reasonable)?” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987); see also Menken, supra, 503 F.3d at 1057. “The plaintiff bears the burden of satisfying the first two prongs of the test.” Schwarzenegger, 374 F.3d at 802. “If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Ibid. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). a. Plaintiff’s claims do not arise out of BMS and AstraZeneca’s California contacts Plaintiff cannot meet the Ninth Circuit’s “arising from” standard because he has not alleged and cannot demonstrate that activities by AstraZeneca and BMS in California caused his alleged injury in Tennessee. Under Ninth Circuit law, plaintiff must show that “but for” the actions of BMS and AstraZeneca in California, he would not have been injured. See Menken, 503 F.3d at 1058. He cannot do so. Plaintiff does not live in California and does not allege that Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 14 of 24 10 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 he was injured in California. Moreover, litigation over these claims depends on plaintiff’s ability to prove medical and legal causation linking his physician’s prescribing decisions to his claimed damages-all of which occurred outside California. There is no connection between any actions of AstraZeneca and BMS in California and the Onglyza prescription, ingestion, and alleged injury in Tennessee. Thus, plaintiff cannot prove that “but for” defendants actions in California, he would not have been injured. Stated another way, plaintiff’s claims would have been exactly the same even if AstraZeneca and BMS had no contacts with California. The United States Supreme Court’s decision in Goodyear clarifies that sales in the forum of some products made by the defendant do not subject it to specific jurisdiction for claims as to products that were sold and allegedly caused injury elsewhere. In Goodyear, North Carolina plaintiffs filed suit at home against three foreign subsidiaries of The Goodyear Tire and Rubber Company, alleging that a defective tire made by the subsidiary in Turkey caused a fatal bus accident in France. Goodyear, supra, 564 U.S. at 918. Tens of thousands of their tires were distributed in North Carolina through a “highly-organized distribution process” by other Goodyear affiliates. Id. at 921-922. The particular type of tire involved in the accident was not sold in North Carolina, but the very tire involved in the accident conformed to U.S. government standards and bore markings required for sale in the U.S. Ibid. The Goodyear opinion explained that North Carolina lacked specific jurisdiction for reasons that are indistinguishable here: Because the episode-in-suit, the bus accident, occurred in France, and the tire alleged to have caused the accident was manufactured and sold abroad, North Carolina courts lacked specific jurisdiction to adjudicate the controversy. Goodyear, supra, 564 U.S. at 919. Applying Goodyear, there is no specific jurisdiction in California over the claims by the plaintiff here because the alleged injury here occurred in Tennessee, and the prescription, sale, and ingestion of Onglyza occurred in Tennessee. Accordingly, California courts lack specific jurisdiction to adjudicate this case. Plaintiff likely will attempt to rely on the California Supreme Court’s recent decision in Bristol-Myers Squibb Company v. Superior Court, 1 Cal.5th 783 (2016), cert. granted. This Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 15 of 24 11 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 opinion of the California Supreme Court is not binding on this Court. Under Ninth Circuit law, “federal law is controlling on the issue of due process under the United States Constitution” and “[w]e are not bound by state cases.” Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1286 n.3 (9th Cir. 1977); see also Sullivan v. Ford Motor Co., No. 16-cv-03505-JST, 2016 WL 6520174, at *3 (N.D. Cal. Nov. 3, 2016) (declining to follow the California Supreme Court’s opinion in Bristol-Myers for that reason). Furthermore, it cannot guide the Court’s analysis of the issue on this motion because it conflicts with the Ninth Circuit’s causal “arising from” standard, which is binding authority in this case. Moreover, the continued viability of the Bristol-Myers opinion-even in California-is not certain. The Supreme Court has granted certiorari to review the decision. Oral arguments occurred on April 25, 2017, and a decision is anticipated by June 2017. Dkt. No. 16-466. To the extent the Court is persuaded by plaintiff’s anticipated argument that the Bristol-Myers case supports a finding of jurisdiction here, Defendants respectfully ask the Court to hold its decision in abeyance until after the US Supreme Court has had a chance to issue its order and clarify the scope of specific jurisdiction. The California Supreme Court in Bristol-Myers loosened the “arising from” requirement- which is supposed to distinguish specific from general jurisdiction-to the point where specific jurisdiction is no longer specific to the plaintiff’s claim and is really general jurisdiction by another name. This result directly contradicts controlling Ninth Circuit authority and cannot be followed here. Finally, BMS and AstraZeneca anticipate that plaintiff may argue that, because they conducted clinical trials in California (as they did in several states), they are somehow subject to suit here. There is no allegation, however, that plaintiff’s claims for relief “arise out of” those clinical trials. And, in fact, they do not. Specific jurisdiction must not be morphed into “unacceptably grasping” jurisdiction as a vehicle for one state to seize jurisdiction over a host of individual personal-injury claims gathered from across the country. Rather, limits on jurisdiction “ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 16 of 24 12 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sovereigns in a federal system.” World-Wide Volkswagen, supra, 444 U.S. at 292-294. “They are a consequence of territorial limitations on the power of the respective States.” Hanson, supra, 357 U.S. at 250-251. The courts of California are not national tribunals, and California’s jurisdiction does not extend to extraterritorial claims brought by an out-of-state plaintiff against out-of-state Defendants over injuries that occurred out-of-state. b. Plaintiff cannot establish personal jurisdiction over BMS and AstraZeneca by naming a California corporation as a co- defendant Plaintiff may not establish personal jurisdiction over BMS and AstraZeneca by naming McKesson Corporation-a California-based company and alleged distributor of the drug at issue-as a co-defendant. Indeed, “[p]ersonal jurisdiction must be established for each defendant and by each plaintiff.” Prime Healthcare Centinela, LLC, et al. v. Kimberly-Clark Corporation, 2016 WL 7177532, at *1 (C.D. Cal. 2016) (quoting Rutter Group Practice Guide: Federal Civil Procedure Before Trial Ch. 3-E (2016)) (emphasis in original); see also Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) (“Personal jurisdiction must exist for each claim asserted against a defendant.”). B. In the alternative, this case should be transferred to the Middle District of Tennessee Defendants alternatively request that this case be transferred to the Middle District of Tennessee. The transfer of a case from one district court to another is appropriate “for the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). “The convenience of witnesses is often the most important factor in resolving a motion to transfer.” Cordoza v. T-Mobile U.S.A. Inc., No. 08-5120 SC, 2009 WL 723843, at *4 (N.D. Cal. 2009) (citing Bunker v. Union Pac. R.R. Co., No. 05-4059, 2006 WL 193856, at *2 (N.D. Cal. 2006)). “Convenience of witnesses” includes considering whether any non-party witnesses are outside the reach of the subpoena power of the court, as well as the physical location of any witnesses who will likely provide testimony in a case. Costco Wholesale Corp. v. Liberty Mut. Ins. Co., Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 17 of 24 13 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 472 F. Supp. 2d 1183, 1193 (S.D. Cal. 2007). Generally, the convenience of the witnesses who are not parties to the action is the most important element to consider. Flotsam of Cal., Inc. v. Huntington Beach Conf. & Visitors Bureau, No. C 06-7028 MMC, 2007 WL 1152682, at *3 (N.D. Cal. Apr. 18, 2007); Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1160 (S.D. Cal. 2005). Finally, a court must consider “not simply how many witnesses each side has and the location of each, but also the importance of the witnesses.” Costco Wholesale Corp., 472 F. Supp. 2d at 1193 (quoting Saleh, 361 F. Supp. 2d at 1165). Other factors for the court to consider as well, include: (1) ease of access to the evidence; (2) familiarity of each forum with the applicable law; (3) feasibility of consolidation of other claims; (4) any local interest in the controversy; (5) relative court congestion and time to trial in each forum; (6) location where the relevant agreements were negotiated and executed; (7) the parties' contacts with the forum; (8) difference in the costs of litigation in the two forums; (9) the availability of compulsory process to compel attendance of unwilling non-party witnesses; and (10) plaintiff's choice of forum. See, e.g., Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986); Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000); Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985). Courts have also consistently held that the “administration of justice is served more efficiently when the action is litigated in the forum that more clearly encompasses the locus of operative facts.” 15 Wright, Miller & Cooper, Federal Practice & Procedure, § 3854 (3d ed.). 1. This case should be transferred to plaintiff’s home state of Tennessee for the convenience of witnesses and the parties, and to allow a court familiar with controlling law to preside over the case. a. Transfer is in the interest of the parties and witnesses. This Court should transfer plaintiff’s case to the Middle District of Tennessee, where he was prescribed, purchased, and ingested Onglyza, and where he allegedly suffered injury from the drug. Indeed, plaintiff has no connection to the Northern District of California. Similarly, AstraZeneca and BMS have no relevant connection to California, as they are not residents or citizens of the state of California, relevant company documents are not housed in California, and Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 18 of 24 14 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the potential company witnesses do not reside in California. Counsel for plaintiff has conceded this fact in related cases involving Onglyza in California state court. As discussed above, a California court granted forum non conveniens motions in two Onglyza cases under a substantially similar standard as the one applied here. See Steimle Decl., Ex. B. Despite the California court’s ruling and subsequent stipulations from other plaintiffs in California state court using the same counsel who filed this claim, see Steimle Decl., Ex. C, counsel for plaintiff continues to file cases involving non-resident defendants in the Northern District of California. Transfer of plaintiff’s claims is also appropriate for the convenience of witnesses. Since plaintiff lives in Tennessee, the parties will require discovery from third parties not subject to the subpoena power of this Court. Indeed, the overwhelming majority of key witnesses are located in plaintiff’s home state of Tennessee, including the plaintiff, his family members, co-workers, employers, prescribing doctors, and treating doctors. Among the physicians whose testimony will be crucial are physicians alleged to have prescribed Onglyza to plaintiff, communicated with him about Onglyza, treated him relative to the conditions and alleged injuries at issue, and have knowledge of his medical histories and any pre-existing conditions. See, e.g., Grossman v. Johnson & Johnson, 2015 WL 1743116, at *2, (N.D. Cal. 2015) (transferring pharmaceutical personal injury case to plaintiff’s home state where she did not allege any events directly related to her injuries took place in California and her doctors, including her prescribing physician, and all documents related to her medical, pharmacy, insurance, and employment records were located in her home state). Because the claims at issue center on an alleged failure to warn of risks of Onglyza treatment, the testimony of plaintiff’s treating and prescribing physicians will be critical because any duty to warn runs to the prescribing physicians, who are the learned intermediaries. See Motus v. Pfizer Inc., 358 F.3d 659, 661 (9th Cir. 2004); Stanley v. Novarties Pharmaceuticals Corp., 11 F. Supp. 3d 987, 1002 (C.D. Cal. 2014) (“California follows the learned intermediary doctrine, which provides that in the case of prescription drugs, the duty to warn ‘runs to the physician, not to the patient.’”); Smith v. Pfizer Inc., 688 F.Supp.2d 735, 745 (M.D. Tenn. 2010) Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 19 of 24 15 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“Tennessee law recognizes the learned intermediary doctrine.”) Thus, the physicians who prescribed the drug to plaintiff, who are outside subpoena power of this Court, are imperative trial witnesses and testimony about what these physicians knew regarding purported risks with Onglyza treatment will be vital to Defendants’ case. Grossman, 2015 WL 1743116, at *2. It also will be important to understand what each treating and prescribing physician told plaintiff about Onglyza, and what materials if any plaintiff was given or otherwise obtained. All of these things would have occurred in Tennessee, not in California. Despite the indisputable significance of all of this evidence, live testimony of these out- of-state physicians and other witnesses will be unavailable to Defendants if trial were to proceed in California, because these witnesses are beyond the subpoena power of this Court. The parties and Court would be left to the generosity of these witnesses to voluntarily travel to California, or a trial replete with deposition testimony would ensue, which courts have maligned for decades. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511 (1947), superseded by statute on other grounds, (“[t]o fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.”); see also Van Schijndel v. Boeing Co., 434 F.Supp.2d 766, 779 (N.D. Cal. 2006). Plaintiff may argue that this deposition testimony can be offered at trial by video, but Defendants would be significantly prejudiced if forced to do so. This would force the attorneys to settle for taking an out-of-state deposition that doubles as both a discovery and a cross- examination deposition and then trying to splice together a video to present at trial. The result is an awkward presentation that lacks the force of a live cross-examination and that bears little resemblance to “the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence.” Watkins v. Sowders, 449 U.S. 341, 349 (1981). Moreover, without the ability to compel these witnesses to testify at trial, the defendant cannot question them about any opposing expert opinions disclosed at or near trial or otherwise tailor their examination to what occurs at trial. Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 20 of 24 16 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, transfer of this action will provide easier access to sources of proof. Plaintiff’s medical records, pharmacy records, employment records, and the alleged improper marketing materials will be located in the jurisdiction in which he resides. As such, document discovery in this case as currently venued will be more difficult, given that the vast majority of doctors, hospitals, and pharmacies who treated plaintiff lie beyond the immediate subpoena power of this Court. If this Court grants the proposed transfer, the local district court will be able to provide plaintiff with access to relevant documents much more efficiently. Any argument that evidence concerning McKesson exists in California somehow tips the analysis plaintiff’s favor is unavailing. Little, if any, evidence on liability and no evidence on damages will exist in California. In fact, the overwhelming majority of the evidence related to liability and damages is in Tennessee or is otherwise at AstraZeneca or BMS facilities outside of California. McKesson is alleged to have distributed the Onglyza at issue in these cases, but any liability for the distribution of Onglyza would be derivative of the liability alleged against the manufacturers, AstraZeneca and BMS. Plaintiff also appears to allege that McKesson promoted Onglyza, warranted it, or made representations about it. He has not alleged, however, that he had any dealings with McKesson or that he relied on anything McKesson said or did. Even if plaintiff or his physicians did have such dealings with McKesson or received any information or representations from McKesson, those activities would have occurred in plaintiff’s home state, not California. b. Transfer will serve the interest of justice. Transfer of this case to plaintiff’s home jurisdiction will also serve the interest of justice by allowing the case to be adjudicated by a court familiar with the governing law of the forum. Indeed, it is preferable to have the court in plaintiff’s home jurisdiction adjudicate these claims: “In diversity of citizenship cases, in which state law provides the substantive rules of decision, it generally is thought to be an advantage in having that law applied by federal judges who are familiar with the governing state law, and thus in trying the case in a district of the state whose law is to govern.” Wright, 15 Fed. Prac. & Proc. Juris. 3854 (3d ed.); see, generally, Gulf Oil, Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 21 of 24 17 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 330 U.S. at 509 (“There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself,” discussing transfer via forum non conveniens, rather than via 28 U.S.C. § 1404(a)). Absent transfer, this Court will be required to interpret and apply Tennessee law to plaintiff’s claims. Additionally, this action should not be imposed on jurors in the Northern District of California when this case has no relationship to California. Gulf Oil, 330 U.S. at 508-509 (case “ought not to be imposed upon the people of a community which has no relation to the litigation.”); see also In re Air Crash Over the Taiwan Straits on May 25, 2002, 331 F.Supp.2d 1176, 1206 (C.D. Cal. 2004). California jurors should not be pulled away from their families and places of business to hear the claims of a non-resident plaintiff, who has no relationship to California. Id. California jurors are not a captive audience, waiting to decide disputes for citizens from other states. The burden of jury duty is a heavy one “that ought not be imposed upon the people of a community which has no relation to the litigation.” Gulf Oil, 330 U.S. at 509. While Defendants anticipate plaintiff will argue that his choice of forum should be accorded deference, this argument is misplaced. While it is indeed true that a plaintiff's choice of forum is generally afforded substantial weight, “[t]he degree to which courts defer to the plaintiff's chosen venue is substantially reduced where the plaintiff's venue choice is not its residence or where the forum chosen lacks a significant connection to the activities alleged in the complaint.” Fabus Corp. v. Asiana Exp. Corp., No. C-00-3172 PJH, 2001 WL 253185, at *1 (N.D. Cal. 2001). Moreover, plaintiff's choice will be accorded little deference if there is any indication of forum shopping. See Royal Queentex Enterprises v. Sara Lee Corp., No. C-99- 4787 MJ, 2000 WL 246599, at *3 (N.D. Cal. 2000) (citing Mission Ins. Co. v. Purina Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir. 1983)). Plaintiff here is not a resident of California and the events giving rise to his complaint occurred in his home state of Tennessee, not California. Because there is an insufficient connection to the state of California, plaintiff’s choice of forum Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 22 of 24 18 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 should be given little, if any, deference. Finally, given the early stage of this case, plaintiff will not be prejudiced, and trial will not be delayed, if the case is transferred now. IV. CONCLUSION For the foregoing reasons, BMS and AstraZeneca request that this Court dismiss Plaintiff’s complaint as against them. In the alternative, Defendants respectfully request that this Court grant their motion to transfer plaintiff’s case pursuant to 28 U.S.C. § 1404(a). DATED: May 26, 2017 KING & SPALDING LLP By: /s/ William E. Steimle ________________ DONALD F. ZIMMER, JR. WILLIAM E. STEIMLE Attorneys for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; AND MCKESSON CORPORATION Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 23 of 24 19 NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER (3:17-cv-1872-JST) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned counsel for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; and MCKESSON CORPORATION hereby certifies that a true and correct copy of the foregoing document was filed with the Court and served electronically through the CM-ECF (electronic case filing) system to all counsel of record to those registered to receive a Notice of Electronic Filing for this case on May 26, 2017. /s/ William E. Steimle WILLIAM E. STEIMLE Attorney for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; and MCKESSON CORPORATION Case 3:17-cv-01872-JST Document 18 Filed 05/26/17 Page 24 of 24 DECLARATION OF WILLIAM E. STEIMLE IN SUPPORT OF MOTION TO DISMISS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER - 3:17-cv-1872-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DONALD F. ZIMMER, JR. (Bar No. 112279) fzimmer@kslaw.com WILLIAM E. STEIMLE (Bar No. 203426) wsteimle@kslaw.com King & Spalding LLP 101 Second Street, Suite 2300 San Francisco, CA 94105 Telephone: +1 415 318 1200 Facsimile: +1 415 318 1300 Attorneys for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP and MCKESSON CORPORATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TONY CAMPBELL, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; and McKESSON CORPORATION Defendants. Case No. 3:17-cv-1872-JST DECLARATION OF WILLIAM E. STEIMLE IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) Date: July 6, 2017 Time: 2:00 p.m. Judge: Hon. Jon S. Tigar Courtroom: 9 I, William E. Steimle, declare as follows: 1. I am an attorney duly licensed to practice law before all courts of the State of California and the U.S. District Court for the Northern District of California and am one of the attorneys of record for AstraZeneca Pharmaceuticals LP, Bristol-Myers Squibb Company, and McKesson Corporation (collectively, Defendants). I have reviewed the file and am familiar Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 1 of 42 2 DECLARATION OF WILLIAM E. STEIMLE IN SUPPORT OF MOTION TO DISMISS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER - 3:17-cv-1872-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with its contents, and as such I have personal knowledge of the facts set forth herein. I make this declaration in support of Motion to Dismiss for Lack of Personal Jurisdiction or, in the Alternative, Motion to Transfer. 2. Attached hereto as Exhibit A is a true and correct copy of plaintiffs’ complaint. 3. Attached hereto as Exhibit B is a true and correct copy of the Order Denying Motion to Quash for Lack of Personal Jurisdiction and Granting Motion to Dismiss for Forum Non Conveniens, entered October 4, 2016 in Carolyn Williams, et al. v. Bristol-Myers Squibb Company, et al, San Francisco Superior Court No. CGC-16-550418; and Donald Leedy, et al. v. Bristol-Myers Squibb Company, et al, San Francisco Superior Court No. CGC-16-552157. Plaintiffs in those actions, who are not California residents, made similar allegations of injury relating to their alleged use of Onglyza as are at issue in this case. 4. Attached hereto as Exhibit C is a true and correct copy of the Order of Dismissal of Non-California-Resident Plaintiffs, entered January 30, 2017 in John Okoye, et al. v. Bristol- Myers Squibb Company, et al, San Francisco Superior Court No. CGC-16-553662; Louis Hosek, et al. v. Bristol-Myers Squibb Company, et al, San Francisco Superior Court No. CGC-16- 554603; and Michael Martin, et al. v. Bristol-Myers Squibb Company, et al, San Francisco Superior Court No. CGC-16-554610. In these actions, plaintiffs represented by the same plaintiffs’ counsel here stipulated to the dismissal of the non-California-resident plaintiffs. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 26th day of May, 2017, in San Francisco, California. By: /s/ William E. Steimle WILLIAM E. STEIMLE Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 2 of 42 3 DECLARATION OF WILLIAM E. STEIMLE IN SUPPORT OF MOTION TO DISMISS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER - 3:17-cv-1872-JST 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned counsel for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; and MCKESSON CORPORATION hereby certifies that a true and correct copy of the foregoing document was filed with the Court and served electronically through the CM-ECF (electronic case filing) system to all counsel of record to those registered to receive a Notice of Electronic Filing for this case on May 26, 2017. /s/ William E. Steimle WILLIAM E. STEIMLE Attorney for Defendants BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP and MCKESSON CORPORATION Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 3 of 42 EXHIBIT A Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 4 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 5 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 6 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 7 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 8 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 9 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 10 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 11 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 12 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 13 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 14 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 15 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 16 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 17 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 18 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 19 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 20 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 21 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 22 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 23 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 24 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 25 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 26 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 27 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 28 of 42 Case 3:17-cv-01872-JST Document 18-1 Filed 05/26/17 Page 29 of 42 EXHIBIT B Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 30 of 421872 8 5 6 59650481 Oct 04 2016 05:33PM Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 31 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 32 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 33 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 34 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 35 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 36 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 37 of 421872 8 5 6 EXHIBIT C Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 38 of 421872 8 5 6 60137631 Jan 30 2017 04:10PM Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 39 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 40 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 41 of 421872 8 5 6 Case 3:17-cv-00247-JST Document 13-1 Filed 04/24/17 Page 42 of 421872 8 5 6 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TONY CAMPBELL, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY; ASTRAZENECA PHARMACEUTICALS LP; and McKESSON CORPORATION Defendants. Case No.: 3:17-cv-1872-JST [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) Judge: Honorable Jon S. Tigar Case 3:17-cv-01872-JST Document 18-2 Filed 05/26/17 Page 1 of 5 2 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There are two types of jurisdiction: general and specific. See Daimler AG v. Bauman 571 U.S. ___, 134 S. Ct. 746, 754-755 (2014). This Court lacks general jurisdiction over Bristol- Myers Squibb Company (BMS) and AstraZeneca Pharmaceuticals LP (AstraZeneca) because neither BMS nor AstraZeneca are “at home” in California. Id. at 749. BMS is a Delaware corporation with its principal place of business in New York, New York. See Exhibit A to the Declaration of William E. Steimle (Steimle Decl.), ¶ 9; Notice of Motion and Motion to Dismiss for Lack of Personal Jurisdiction (FRCP 12(b)(2)) or, in the alternative, to Transfer (28 U.S.C. § 1404(a), p. 5, n 1. AstraZeneca is a Delaware limited partnership with its principal place of business in Wilmington, Delaware. See Steimle Decl., Ex. A, ¶ 10. This Court lacks specific jurisdiction over BMS and AstraZeneca because plaintiff’s claims do not arise from any of their activities within California. The Ninth Circuit interprets the “arising from” requirement for specific jurisdiction to impose a causal connection between a defendant’s forum-state contacts and a plaintiff’s claims. See Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007). Under this standard, a defendant’s forum-state contacts must be the “but for” cause of a plaintiff’s injuries. Ibid. At all relevant times, plaintiff was a resident of Tennessee. See Steimle Decl., Ex. A, ¶ 7. He does not allege that he was prescribed the drugs at issue (Onglyza and Kombiglyze) in California, that he ingested either drug in California, or that he suffered any injury in California. He identifies no causal connection between his claims and the contacts AstraZeneca and BMS have with California. Thus, his claims would have been exactly the same even if AstraZeneca and BMS had no contacts with California. Accordingly, these forum contacts cannot be the cause of plaintiff’s claimed injury and this Court does not have specific jurisdiction over plaintiff’s claims. Having considered Defendants Bristol-Myers Squibb Company’s, AstraZeneca Pharmaceutical LP’s, and McKesson Corporation’s motion to dismiss for lack of personal jurisdiction (FRCP 12(b)(2) (Motion to Dismiss), the Motion to Dismiss is GRANTED. Therefore, Defendants Bristol-Myers Squibb Company’s, AstraZeneca Pharmaceutical LP’s, and McKesson Corporation’s motion to transfer this case to the Middle District of Case 3:17-cv-01872-JST Document 18-2 Filed 05/26/17 Page 2 of 5 3 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tennessee pursuant to 28 U.S.C. § 1404(a) is DENIED AS MOOT. IT IS SO ORDERED. Dated: _______________ ____________________________________ Honorable Jon S. Tigar United States District Judge Case 3:17-cv-01872-JST Document 18-2 Filed 05/26/17 Page 3 of 5 4 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [In the alternative:] The interests of justice and judicial efficiency strongly favor transferring this case to the Middle District of Tennessee so that it might be litigated in the judicial district where plaintiff resides. The transfer of a case from one district court to another is appropriate “for the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). Plaintiff has no connection to the Northern District of California. He alleges he sought treatment, was prescribed Onglyza, ingested Onglyza, and was injured in Tennessee. Thus, the documents, records, and witnesses (including plaintiff’s prescribing and treating doctors) relevant to plaintiff’s claims are located in Tennessee. As the events giving rise to plaintiff’s claims occurred in Tennessee, each cause of action will be governed by Tennessee law. Such transfer would conserve judicial resources and avoid inconsistent rulings by ensuring that plaintiff’s case is litigated in a court familiar with governing law, near the relevant documents, and with subpoena power over the critical non-party witnesses. Given the early stage of this case, trial will in no way be hindered or delayed if the case is transferred at this time to the appropriate district court. Rather, transfer at this point will result in significant discovery and case management benefits through reduced costs and easier access to evidence. Having considered Defendants Bristol-Myers Squibb Company’s, AstraZeneca Pharmaceutical LP’s, and McKesson Corporation’s motion to transfer this case to the Middle District of Tennessee pursuant to 28 U.S.C. § 1404(a) (Motion to Transfer), the Motion to Transfer is GRANTED. IT IS SO ORDERED. Dated: _______________ ____________________________________ Honorable Jon S. Tigar United States District Judge Case 3:17-cv-01872-JST Document 18-2 Filed 05/26/17 Page 4 of 5 5 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (FRCP 12(B)(2)) OR, IN THE ALTERNATIVE, TO TRANSFER (28 U.S.C. § 1404(A)) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned counsel for Defendants BRISTOL-MYERS SQUIBB COMPANY, ASTRAZENECA PHARMACEUTICALS LP, and MCKESSON CORPORATION hereby certifies that a true and correct copy of the foregoing document was filed with the Court and served electronically through the CM-ECF (electronic case filing) system to all counsel of record to those registered to receive a Notice of Electronic Filing for this case on May 26, 2017. /s/ William E. Steimle WILLIAM E. STEIMLE Attorney for Defendant BRISTOL-MYERS SQUIBB COMPANY, ASTRAZENECA PHARMACEUTICALS LP, and MCKESSON CORPORATION Case 3:17-cv-01872-JST Document 18-2 Filed 05/26/17 Page 5 of 5