Colton O Reilly et al v. Mckesson Corporation, et al

NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction of Out-of-State Plaintiffs

C.D. Cal.November 2, 2016

MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 PAMELA J. YATES (State Bar No. 137440) Email address: pamela.yates@kayescholer.com KATHRYN PODSIADLO (State Bar No. 299438) Email address: kathryn.podsiadlo@kayescholer.com KAYE SCHOLER LLP 1999 Avenue of the Stars, Suite 1600 Los Angeles, California 90067 Telephone: (310) 788-1000 Facsimile: (310) 788-1200 Attorneys for Defendants Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA COLTON O’REILLY, individually; TRACI O’REILLY, individually; KEVIN STANG, individually; PATTY CRUNDWELL, individually; TAYLOR STRENGTH, individually; MELISSA STRENGTH, individually; MIRACLE KNIGHTON, individually; NINA KNIGHTON, individually; JEREKRE OKORIOGHA, individually; CAROLINE OKORIOGHA, individually; S.B., a minor by and through his Guardian Ad Litem, MELISSA BISHOP, and MELISSA BISHOP individually; JOSEPH RIVER SMITH, individually; ANN GENDUSA- SMITH, individually; B.J.T.M., a minor by and through his Guardian Ad Litem JOLENE MCDOWELL-SUTTON, and JOLENE MCDOWELL-SUTTON, individually; DYLAN MULLINS, individually; CHERI JACOBS, individually; Plaintiffs, v. MCKESSON CORPORATION; PFIZER, INC.; PFIZER INTERNATIONAL LLC; J.B. ROERIG & CO.; GREENSTONE LLC, and DOES 1 through 100, inclusive, Defendants. Case No. 8:16-cv-01947-DOC-KES DEFENDANTS PFIZER INC., PFIZER INTERNATIONAL LLC, AND GREENSTONE LLC’S NOTICE OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION Judge: Hon. David O. Carter Date: December 5, 2016 Time: 8:30 a.m. Location: Court 9C [Filed concurrently with Motion to Stay proceedings] Case 8:16-cv-01947-DOC-KES Document 12 Filed 11/02/16 Page 1 of 3 Page ID #:111 -1- MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 PLAINTIFFS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT, on December 5, 2016 in the courtroom of Hon. David O. Carter, located at Court 9C, United States Courthouse, 411 West Fourth Street, Santa Ana, CA 92701, Defendants Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC (collectively, the “Pfizer Defendants”), pursuant to Federal Rule of Civil Procedure 12(b)(2), will and hereby do move to dismiss the claims of the 6 out-of-state Plaintiff Families for lack of personal jurisdiction. In support of this motion, the Pfizer Defendants state the following grounds, which are fully set forth in the Pfizer Defendants’ memorandum in support of this motion: 1. In this action, Plaintiffs joined the distinct personal injury claims of 2 mothers bringing claims on behalf of their minor children and 7 mothers and their 7 adult children (with each mother and child referred to herein as a “Plaintiff Family”). Each Plaintiff Family alleges that the children developed various birth defects and other injuries as a result of the mother plaintiff’s ingestion of the prescription medication Zoloft or its generic equivalent sertraline hydrochloride during her pregnancy. (Compl. ¶¶ 1-19.) 2. The following 6 Plaintiff Families, at whom this motion is directed, are residents of states other than California: a. Kevin Stang and Patty Crundwell: Texas (id. ¶¶ 3-4); b. Taylor and Melissa Strength: Alabama (id. ¶¶ 5-6); c. Miracle and Nina Knighton: Tennessee (id. ¶¶ 7-8); d. S.B. and Melissa Bishop: Kansas (id. ¶¶ 11-12); e. Joseph River Smith and Ann Gendusa-Smith: Mississippi (id. ¶¶ 13-14); f. Dylan Mullins and Cheri Jacobs: Oklahoma (id. ¶¶ 18-19).1 3. The Pfizer Defendants are not incorporated in California and they do not maintain their principal places of business in California. (Sanders Decl. ¶ 2.) Pursuant to the Supreme 1 The following Plaintiff Families reside in California: the O’Reilly, Okoriogha, and McDowell-Sutton families. Pfizer has answered the Complaint as to these families only. Case 8:16-cv-01947-DOC-KES Document 12 Filed 11/02/16 Page 2 of 3 Page ID #:112 -2- MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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’s decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), this Court lacks general personal jurisdiction over the claims brought by all of the out-of-state Plaintiff Families. 4. The 6 out-of-state Plaintiff Families do not allege that their injuries were sustained in California or due to activities that occurred in California. None of the 6 out-of-state Plaintiff Families can demonstrate that Pfizer had continuous and systematic contacts with California, which gave “rise to the liabilities sued on.” Daimler, 134 S. Ct. at 761 (emphasis added, internal quotes omitted). Accordingly, this Court lacks specific personal jurisdiction over the claims of the 6 out-of-state Plaintiff Families. This Motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on October 24, 2016. RELIEF For the foregoing reasons, Defendants Pfizer Inc., Pfizer International LLC, J.B. Roerig & Co., and Greenstone LLC respectfully request that the Court dismiss the claims of all of the out- of-state Plaintiff Families pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Dated: November 2, 2016 Respectfully submitted, KAYE SCHOLER LLP By: /s/ Pamela Yates Pamela J. Yates Attorney for Defendant Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC Case 8:16-cv-01947-DOC-KES Document 12 Filed 11/02/16 Page 3 of 3 Page ID #:113 MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 PAMELA J. YATES (State Bar No. 137440) Email address: pamela.yates@kayescholer.com KATHRYN PODSIADLO (State Bar No. 299438) Email address: kathryn.podsiadlo@kayescholer.com KAYE SCHOLER LLP 1999 Avenue of the Stars, Suite 1600 Los Angeles, California 90067 Telephone: (310) 788-1000 Facsimile: (310) 788-1200 Attorneys for Defendants Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA COLTON O’REILLY, individually; TRACI O’REILLY, individually; KEVIN STANG, individually; PATTY CRUNDWELL, individually; TAYLOR STRENGTH, individually; MELISSA STRENGTH, individually; MIRACLE KNIGHTON, individually; NINA KNIGHTON, individually; JEREKRE OKORIOGHA, individually; CAROLINE OKORIOGHA, individually; S.B., a minor by and through his Guardian Ad Litem, MELISSA BISHOP, and MELISSA BISHOP individually; JOSEPH RIVER SMITH, individually; ANN GENDUSA-SMITH, individually; B.J.T.M., a minor by and through his Guardian Ad Litem JOLENE MCDOWELL-SUTTON, and Jolene MCDOWELL-SUTTON, individually; DYLAN MULLINS, individually; CHERI JACOBS, individually; Plaintiffs, v. MCKESSON CORPORATION; PFIZER, INC.; PFIZER INTERNATIONAL LLC; J.B. ROERIG & CO.; GREENSTONE LLC, and DOES 1 through 100, inclusive, Defendants. Case No. 8:16-cv-01947-DOC-KES DEFENDANTS PFIZER INC., PFIZER INTERNATIONAL LLC, AND GREENSTONE LLC’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION Judge: Hon. David O. Carter Date: December 5, 2016 Time: 8:30 a.m. Location: Court 9C [Filed concurrently with Motion to Stay proceedings] Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 1 of 18 Page ID #:114 -i- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 INTRODUCTION .................................................................................................................................1 FACTUAL BACKGROUND ................................................................................................................2 ARGUMENT .........................................................................................................................................2 I. Plaintiffs Have the Burden of Proving Personal Jurisdiction ....................................................2 II. California Courts Lack General Jurisdiction Over the Pfizer Defendants .................................3 III. This Court Lacks Specific Jurisdiction Over Plaintiffs’ Claims ................................................7 A. The Out-of-State Plaintiffs’ Claims Do Not Arise Out of the Pfizer Defendants’ Activities in California ..............................................................................7 B. The Out-of-State Plaintiffs Cannot Create Specific Jurisdiction by Joining Their Claims With California Plaintiffs .......................................................................10 C. Joinder of McKesson Does Not Establish Specific Jurisdiction as to the Pfizer Defendants ...................................................................................................................12 CONCLUSION ....................................................................................................................................13 Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 2 of 18 Page ID #:115 -ii- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 Aclin v. PD-RX Pharmaceuticals Inc., 2016 WL 3093246 (W.D. Okla. June 1, 2016) ............................................................................ 7 American Institute of Intradermal Cosmetics, Inc. v. Society of Permanent Cosmetic Professionals, 2013 WL 1685558 (C.D. Cal. Apr. 16, 2013) ........................................................................... 12 Arnold v. Goldstar Financial Systems, Inc., 2002 WL 1941546 (N.D. Ill. Aug. 22, 2002) ............................................................................ 11 Baca Gardening & Landscaping, Inc. v. Prizm Vinyl Corp., 2008 WL 4889030 (C.D. Cal. Nov. 12, 2008) ............................................................................. 2 In re Bard IVC Filters Products Liability Litigation, 2016 WL 6393595 (D. Ariz. Oct. 28, 2016) ............................................................................ 7, 8 Barron v. Pfizer, Inc., 2015 WL 5829867 (E.D. Mo. Oct. 6, 2015) ............................................................................ 7, 8 Bartholome v. Pfizer, Inc., 2016 WL 366795 (E.D. Mo. Jan. 29, 2016) ............................................................................ 6, 7 Beard v. SmithKline Beecham Corp., 2016 WL 1746113 (E.D. Mo. May 3, 2016) ............................................................................... 8 Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874 (Cal. 2016) ................................................................................................... 8, 9, 10 Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016)................................................................................................... 5, 10 Chavez v. Dole Food Co., 2016 WL 4578641 (3d Cir. Sept. 2, 2016) .................................................................................. 5 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .......................................................................................................... passim Evans v. Johnson & Johnson, 2014 WL 7342404 (S.D. Tex. Dec. 23, 2014) ............................................................................. 7 Executone of Columbus, Inc. v. Inter-Tel, Inc., 2006 WL 3043115 (S.D. Ohio Oct. 4, 2006) ............................................................................. 11 Farber v. Tennant Truck Lines, Inc., 84 F. Supp. 3d 421 (E.D. Pa. 2015) ............................................................................................. 5 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 284 (2011) .......................................................................................................... passim Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014)......................................................................................................... 6 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) ......................................................................................................... 3, 11, 12 Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 3 of 18 Page ID #:116 -iii- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 International Shoe Co. v. State of Washington, 326 U.S. 310 (1945) ........................................................................................................... 3, 7, 12 Jones v. ITT Systems Division, 2015 WL 1086295 (8th Cir. Mar. 13, 2015) ................................................................................ 6 Level 3 Communications, LLC v. Illinois Bell Telephone Co., 2014 WL 50856 (E.D. Mo. Jan. 7, 2014), vacated in part on other grounds on reconsideration, 2014 WL 1347531 (E.D. Mo. Apr. 4, 2014) .................................................. 11 Locke v. Ethicon Inc., 458 F. Supp. 3d 757 (S.D. Tex. Nov. 10, 2014) ...................................................................... 6, 7 Martinez v. Aero Caribbean, 764 F.3d 1062 (9th Cir. 2014) ..................................................................................................... 6 Mellon Bank (E.) PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217 (3d Cir. 1992) ...................................................................................................... 2 Monkton Ins. Services, Ltd. v. Ritter, 768 F.3d 429 (5th Cir. 2014) ....................................................................................................... 6 Oakley, Inc. v. Jofa AB, 287 F. Supp. 2d 1111 (C.D. Cal. 2003) ....................................................................................... 2 O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312 (3d Cir. 2007)..................................................................................................... 3, 9 Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952) ..................................................................................................................... 3 Phillips Exeter Academy v. Howard Phillips Fund, 196 F.3d 284 (1st Cir. 1999) ...................................................................................................... 12 In re Plavix Related Cases, 2014 WL 3928240 (Ill. Cir. Ct. Aug. 11, 2014) .......................................................................... 7 Remick v. Manfredy, 238 F.3d 248 (3d Cir. 2001)....................................................................................................... 12 Rush v. Savchuk, 444 U.S. 320 (1980) ................................................................................................................... 12 Shaffer v. Heitner, 433 U.S. 186 (1977) ................................................................................................................... 11 Shafik v. Curran, 2010 WL 2510194 (M.D. Pa. June 17, 2010) ............................................................................ 11 Shrum v. Big Lots Stores, Inc., 2014 WL 6888446 (C.D. Ill. Dec. 8, 2014) ................................................................................. 5 Snodgrass v. Berklee College of Music, 559 F. App’x 541 (7th Cir. 2014) ................................................................................................ 6 In re Testosterone Replacement Therapy Product Liability Litigation Coordinated Pretrial Proceedings, 164 F. Supp. 3d 1040 (N.D. Ill. 2016) ............................................................................. 7, 11, 12 Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 4 of 18 Page ID #:117 -iv- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 Tulsa Cancer Institute, PLLC v. Genentech Inc., 2016 WL 141859 (N.D. Okla. Jan. 12, 2016) ............................................................................ 12 VBConversions LLC v. Now Solutions, Inc., 2013 WL 2370723 (C.D. Cal. May 30, 2013) ............................................................................. 2 Vons Companies, Inc. v. Seabest Foods, Inc., 926 P.2d 1085 (Cal. 2005) ........................................................................................................... 8 Walden v. Fiore, 134 S. Ct. 1115 (2014) ..................................................................................................... 7, 11, 12 In re Zofran (Ondansetron) Products Liability Litigation, 2016 WL 2349105 (D. Mass. May 4, 2016) .......................................................................... 7, 12 Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 5 of 18 Page ID #:118 -1- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 Defendants Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC (collectively, the “Pfizer Defendants”) respectfully submit this memorandum of law in support of their motion to dismiss the claims of 6 out-of-state Plaintiff Families for lack of personal jurisdiction. INTRODUCTION The Plaintiffs in this action are 2 mothers bringing claims on behalf of their minor children and 7 mothers bringing claims alongside their 7 adult children (with each mother and child referred to herein as a “Plaintiff Family”). Each Plaintiff Family alleges that the children developed various birth defects and other injuries as a result of the mother plaintiff’s ingestion of the prescription medication Zoloft or its generic equivalent sertraline hydrochloride during her pregnancy. (Compl. ¶¶ 1-19.) However, the Pfizer Defendants are not incorporated in California and do not maintain their principal places of business here. Further, nearly all of the Plaintiffs are residents of states other than California. 1 In addition, the 6 Non-California Plaintiff Families do not allege that their injuries were sustained in California or due to activities that occurred in California. Under the standards set forth by the Supreme Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), this Court lacks general personal jurisdiction over the Pfizer Defendants because the Pfizer Defendants do not maintain their principal places of business in California, are not organized under California law, and do not conduct activities that are so exceptional or extraordinary as to render them at home in California. Further, this Court lacks specific personal jurisdiction over the claims brought by the Non-California Plaintiffs because Plaintiffs have not demonstrated, and cannot demonstrate, that the Pfizer Defendants’ contacts with California gave rise to their claims. Accordingly, the Pfizer Defendants respectfully request that the Court dismiss the claims of the 6 Non-California Plaintiff Families for lack of personal jurisdiction. 1 Of the 9 Plaintiff Families presently in this action, only 3 reside in California: the O’Reilly, Okoriogha, and McDowell families. The other Plaintiffs reside in 6 different states: Alabama (the Strength family), Kansas (the Bishop family), Mississippi (the Smith family), Oklahoma (the Mullins/Jacobs family), Tennessee (the Knighton family), and Texas (the Stang/Crundwell family). (Compl ¶¶ 1-19.) Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 6 of 18 Page ID #:119 -2- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 FACTUAL BACKGROUND On or about September 9, 2016, Plaintiffs filed a Complaint against the Pfizer Defendants, in the Superior Court for the County of Orange. Pfizer Inc. was served with a Summons and the Complaint on or about September 29, 2016, and timely removed this action to federal court. Plaintiffs allege the children of the Plaintiffs Families sustained congenital birth defects due to maternal use of Zoloft during pregnancy, a prescription antidepressant manufactured by Pfizer Inc. (Compl. ¶¶ 1-24.) The Non-California Plaintiff Families do not allege that they reside or have resided in California. Id. The Non-California Plaintiffs also do not allege ingestion of Zoloft or sertraline hydrochloride in California, that they were injured in California, that they were injured by conduct that occurred in California, or that their claims have any connection to California whatsoever. Indeed, as to the Non-California Plaintiffs, the Complaint is devoid of allegations that connect this case to California. Plaintiffs merely allege that Pfizer Inc. conducts business throughout the United States, including California (id. ¶ 28), that it “derives substantial revenues from drugs it sells in the State of California” (id. ¶ 30), and that marketed, distributed and sold Zoloft throughout the United States, including California (id. ¶ 28). ARGUMENT I. Plaintiffs Have the Burden of Proving Personal Jurisdiction Plaintiffs have the burden of proving the existence of personal jurisdiction over their claims. See VBConversions LLC v. Now Solutions, Inc., 2013 WL 2370723, at *3 (C.D. Cal. May 30, 2013); accord Mellon Bank (E.) PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). To survive a motion to dismiss, Plaintiffs must make “a prima facie showing that personal jurisdiction exists.” Oakley, Inc. v. Jofa AB, 287 F. Supp. 2d 1111, 1114 (C.D. Cal. 2003); see also Mellon Bank, 960 F.2d at 1223. This “prima facie showing must be based on affirmative proof beyond the pleadings, such as affidavits, testimony or other competent evidence of specific facts.” Oakley, 287 F. Supp. 2d at 1114. In particular, Plaintiffs must demonstrate that the Court’s exercise of jurisdiction is compatible with the due process clause of the Fifth Amendment. See Baca Gardening & Landscaping, Inc. v. Prizm Vinyl Corp., 2008 WL 4889030, at *2 (C.D. Cal. Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 7 of 18 Page ID #:120 -3- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 Nov. 12, 2008); accord O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 321 (3d Cir. 2007). Here, the exercise of personal jurisdiction over the Pfizer Defendants is not compatible with due process. The Pfizer Defendants are not organized under California law; they do not maintain their principal places of business here; and the activities allegedly giving rise to the Non-California Plaintiffs’ claims have no connection whatsoever with California. As explained in the canonical opinion, International Shoe Co. v. State of Washington, 326 U.S. 310 (1945), due process requires “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Id. at 316. As further explained by the Supreme Court in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 284 (2011), the International Shoe Court classified cases involving out-of-state corporate defendants into two categories. First, “as in International Shoe itself, jurisdiction unquestionably could be asserted where the corporation’s in-state activity is ‘continuous and systematic’ and that activity gave rise to the episode-in-suit.” Goodyear, 131 S. Ct. at 2853 (emphasis in original). Second, there are “‘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 distinct from those activities.” Id. (quoting International Shoe, 326 U.S. at 318). Following International Shoe, these categories became known as “general or all-purpose jurisdiction, and specific or case-linked jurisdiction.” Goodyear, 131 S. Ct. at 2851. As discussed below, the Non-California Resident Plaintiffs cannot establish either form of jurisdiction over their claims and, therefore, the Pfizer Defendants respectfully request that the Court grant their motion to dismiss for lack of personal jurisdiction over those claims. II. California Courts Lack General Jurisdiction Over the Pfizer Defendants General jurisdiction is the authority to “hear any and all claims” against a defendant. Goodyear, 131 S. Ct. at 2851. Following International Shoe the Supreme Court’s decisions have set a high standard for the application of general jurisdiction. See Perkins v. Benguet Consol. Min. Co., 342 U.S. 437 (1952); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 8 of 18 Page ID #:121 -4- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 (1984); Goodyear, 131 S. Ct. 2846. More recently, in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), Justice Ginsburg, writing for the eight-justice majority, explained that a forum’s exercise of general jurisdiction over a corporation is limited to its formal place of incorporation and principal place of business except in an “exceptional case.” 134 S. Ct. at 761 & n.19. Accordingly, this Court lacks general jurisdiction over the Pfizer Defendants because they are not organized under California law, do not maintain their principal places of business in California, and Plaintiffs have not alleged anything even approaching “exceptional” contacts with California. In Daimler, Argentine and Chilean residents brought suit against DaimlerChrysler AG (Daimler), a German public stock company, for alleged human rights violations by its Argentine subsidiary in Argentina. Id. at 750-51. The Plaintiffs argued that California courts could exercise general jurisdiction over Daimler “predicated on the California contacts of Mercedes-Benz USA, LLC (MBUSA), a subsidiary of Daimler incorporated in Delaware with its principal place of business in New Jersey.” Id. at 751. The record established that MBUSA was the “the largest supplier of luxury vehicles to the California market,” that “over 10% of all sales of new vehicles in the United States take place in California, and that “MBUSA’s California sales account[ed] for 2.4% of Daimler’s worldwide sales.” Id. at 752. This amounted to billions of dollars of sales and MBUSA also had multiple offices and facilities in California, including a regional headquarters. Id. at 766-67 (Sotomayor J., concurring). However, despite these significant and continuous business contacts, the Court held that California courts lacked general jurisdiction over Daimler. After surveying its prior decisions, the Court concluded that the question of general jurisdiction 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.’” Id. at 761 (quoting Goodyear, 131 S. Ct. at 2851). Applying this standard, the Court found that, “[e]ven if we were to assume that MBUSA is at home in California, and further to assume MBUSA’s contacts are imputable to Daimler, there would still be no basis to subject Daimler to general Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 9 of 18 Page ID #:122 -5- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 jurisdiction in California, for Daimler’s slim contacts with the State hardly render it at home there.” Id. at 760. The Court explained: [N]either 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.” Id. at 761-62 (citation omitted). Daimler makes clear, therefore, that the marketing, sales and distribution of a product in a State, no matter how extensive or continuous, will not subject a defendant to general jurisdiction. To establish that a corporation is “at home” in a forum, “a court must assess a corporation’s entire activities – nationwide and worldwide – and cannot deem a corporation to be ‘at home’ in every place they operate.” Shrum v. Big Lots Stores, Inc., 2014 WL 6888446, at *6 (C.D. Ill. Dec. 8, 2014). As the Second Circuit recently held, “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’” that could support general jurisdiction. Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2d Cir. 2016) (holding that a Connecticut court lacked general jurisdiction over a defendant that had registered to do business in Connecticut, ran operations from several Connecticut locations, and generated about $160 million from its Connecticut-based work over a four-year period). Thus, as the vast host of post-Daimler decisions have recognized, general jurisdiction over a corporation is limited to the forums where it is incorporated or has its principal place of business in all but the most exceptional cases. See Chavez v. Dole Food Co., 2016 WL 4578641, at *13 (3d Cir. Sept. 2, 2016) (observing that, after Daimler, “it is ‘incredibly difficult to establish general jurisdiction [over a corporation] in a forum other than the place of incorporation or principal place of business’”) (alteration in original, citation omitted); see also Farber v. Tennant Truck Lines, Inc., 84 F. Supp. 3d 421, 431 (E.D. Pa. 2015) (“[E]very circuit court to analyze the effect of Goodyear and Daimler on general jurisdiction jurisprudence has concluded, either directly or indirectly, that the unadorned Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 10 of 18 Page ID #:123 -6- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 ‘continuous and systematic’ contacts standard for determining general jurisdiction is no longer viable in light of those cases.”). 2 Following Daimler, multiple courts have concluded that even where a domestic pharmaceutical or medical device defendant had extensive local sales, employees, and offices in the jurisdiction, the court lacked general jurisdiction where, as here, the company had its principal place of business and place of incorporation elsewhere. For example, in Locke v. Ethicon Inc., 458 F. Supp. 3d 757 (S.D. Tex. Nov. 10, 2014), the court rejected arguments that medical device companies could be subjected to general jurisdiction simply on the basis of significant in-state business activities. In Locke, plaintiffs sued Johnson & Johnson and Ethicon, Inc. in Texas for injuries allegedly resulting from mesh implants. See id. at 759. Though the defendants were New Jersey corporations principally located in New Jersey, they sold millions of dollars of mesh products in Texas over a nine year period, nearly twice what they sold in their home state, New Jersey. Id. at 764. Additionally, the defendants had Texas-based sales representatives and division managers and they also had a website designed to market their mesh products nationwide. Id. at 762. Nevertheless, the court held it lacked general jurisdiction under Daimler, holding that the “defendants’ operations in Texas are not so substantial and of such nature as to render them at home in the State.” Id. at 765. Similarly, in cases involving Zoloft, courts have held that “[t]he mere marketing of Zoloft in Missouri does not make Pfizer’s connection with the state continuous and systematic as to render it at home here.” Bartholome v. Pfizer, Inc., 2016 WL 366795, at *2 (E.D. Mo. Jan. 29, 2 E.g., Jones v. ITT Sys. Div., 2015 WL 1086295, at *1 (8th Cir. Mar. 13, 2015) (per curiam) (holding that the lower court lacked general jurisdiction and citing Daimler for the proposition that place of incorporation and principal place of business are the “paradigm bases” for finding “continuous and systematic relations” with a state); Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (recognizing that after Goodyear and Daimler it is “incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.”); Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014) (reversing a district court’s grant of general jurisdiction because the defendant was not “an exceptional case” justifying the exercise of general jurisdiction); Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (noting that Daimler “makes clear the demanding nature of the standard for general personal jurisdiction over a corporation”); Snodgrass v. Berklee College of Music, 559 F. App’x 541, 542 (7th Cir. 2014) (affirming dismissal for lack of personal jurisdiction because defendants were not “essentially at home” in Illinois). Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 11 of 18 Page ID #:124 -7- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 2016); accord Barron v. Pfizer, Inc., 2015 WL 5829867, at *2 (E.D. Mo. Oct. 6, 2015). Indeed, in the years since Daimler, courts have repeatedly rejected arguments that the distribution of a prescription drug or medical device in a State subjects the defendant to general jurisdiction there. See, e.g., In re Bard IVC Filters Prods. Liab. Litig., 2016 WL 6393595, at *4 (D. Ariz. Oct. 28, 2016); In re Zofran (Ondansetron) Prods. Liab. Litig., 2016 WL 2349105, at *3 (D. Mass. May 4, 2016); In re Testosterone Replacement Therapy Prod. Liab. Litig. Coordinated Pretrial Proceedings, 164 F. Supp. 3d 1040, 1046-47 (N.D. Ill. 2016); Aclin v. PD-RX Pharms. Inc., 2016 WL 3093246, at *6 (W.D. Okla. June 1, 2016); Locke v. Ethicon Inc., 458 F. Supp. 3d 757, 762-65 (S.D. Tex. Nov. 10, 2014); Evans v. Johnson & Johnson, 2014 WL 7342404, at *5 (S.D. Tex. Dec. 23, 2014); In re Plavix Related Cases, 2014 WL 3928240, at *7 (Ill. Cir. Ct. Aug. 11, 2014). In light of the Supreme Court’s decision in Daimler, and subsequent lower court decisions, it is clear that Plaintiffs cannot carry their burden of establishing that California courts have general jurisdiction over the Pfizer Defendants. III. This Court Lacks Specific Jurisdiction Over Plaintiffs’ Claims A. The Out-of-State Plaintiffs’ Claims Do Not Arise Out of the Pfizer Defendants’ Activities in California Specific jurisdiction is the authority to adjudicate “issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Goodyear, 131 S. Ct. at 2851 (internal quotation marks omitted). The doctrine of specific jurisdiction provides that jurisdiction may be “asserted where a corporation’s in-state activities are not only ‘continuous and systematic, but also give rise to the liabilities sued on.’” Daimler, 134 S. Ct. at 761 (quoting Int’l Shoe, 326 U.S. at 317, emphasis added); see also Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (“For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.”). And, as with general jurisdiction, the exercise of specific jurisdiction requires that the contacts at issue be significant enough so as not to “offend ‘traditional notions of fair play and substantial justice.’” International Shoe, 326 U.S. at 316. Plaintiffs have not alleged and cannot prove facts giving rise to specific jurisdiction. For example, in Bartholome, the court explained: “Minor Plaintiff was born in Clermont, Florida, and Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 12 of 18 Page ID #:125 -8- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 Mother Plaintiff does not allege she ingested Zoloft in Missouri during pregnancy. Plaintiffs allege no connection with Missouri. Defendant’s only contacts with Missouri are that they marketed and sold Zoloft in Missouri. These contacts do not relate to the causes of action in this suit, which arise out Mother Plaintiff’s ingestion of Zoloft in Florida and Minor Plaintiff’s subsequent birth.” 2016 WL 366795, at *1; accord Barron, 2015 WL 5829867, at *1; see also In re Bard, 2016 WL 6393595, at *4 (“Because Plaintiffs received their Bard filters and related medical care in other States, they cannot show that their injuries arise out of or relate to Defendants’ Missouri activities”); Beard v. SmithKline Beecham Corp., 2016 WL 1746113, at *2 (E.D. Mo. May 3, 2016) (“Plaintiffs have not alleged that they were sold Paxil in Missouri or that they ingested Paxil in Missouri. In fact, Plaintiffs have not alleged any connection between Missouri and their injuries.”). So, too, here, the claims of the out-of-state Plaintiff Families did not arise out of the Pfizer Defendants’ activities in California. There is no suggestion that the out-of-state Plaintiffs were prescribed or ingested Zoloft in California, that they were injured in California, or that their claims have any connection to California whatsoever. Moreover, the principal activities relating to Zoloft’s drug applications and labeling took place in New York and Connecticut, not California. (Sanders Decl. ¶ 3.) Plaintiffs may cite California state law that is flatly inconsistent with decisions of federal courts construing this issue of federal constitutional law, including the California Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874 (Cal. 2016) (pet. for cert. filed Oct. 11, 2016), to support their claims for specific jurisdiction. In Bristol-Myers, the California Supreme Court relied upon its “sliding scale approach to specific jurisdiction” adopted in Vons Companies, Inc. v. Seabest Foods, Inc., 926 P.2d 1085 (Cal. 2005), 3 that is inconsistent with the law in the Third Circuit, the Ninth Circuit and almost every other federal circuit. Federal courts utilize much more rigorous tests for specific jurisdiction. The Ninth Circuit has held that there much be a “but for” causal connection between the defendants’ conduct in the forum state and the plaintiffs’ injuries for that activity to support specific jurisdiction. See Menken v. Emm, 3 377 P.3d at 889 (citing Vons, 926 P.2d at 1098-99). Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 13 of 18 Page ID #:126 -9- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 28 503 F.3d 1050, 1058 (9th Cir. 2007). The Third Circuit has also expressly rejected California’s sliding scale approach, noting that it inappropriately merges general and specific jurisdiction resulting in “a freewheeling totality-of-the-circumstances test.” O’Connor, 496 F.3d at 321. 4 Based on its flawed reasoning, the California Supreme Court, in a 4-3 decision held in Bristol-Myers that the defendant’s nationwide marketing activities could subject it to jurisdiction in California even though the non-California plaintiffs did not purchase or use Plavix in California, were not prescribed Plavix in California, and did not rely on the defendant’s marketing in California. And it was undisputed that none of the defendant’s development, research or labeling activities for Plavix took place in California. See Bristol-Myers, 377 P.3d 895-96 (Werdegar, J., dissenting). The decision of the California Supreme Court is wrongly decided. It is neither binding on the federal courts, nor is it, as the dissent observed, “supported by specific jurisdiction decisions from the United States Supreme Court . . . or the lower federal and state courts.” Id. at 662. Indeed, the decision is irreconcilably at odds with the decisions of numerous federal courts. The Bristol-Myers decision essentially nationalizes questions of personal jurisdiction by asserting that “all the plaintiffs’ claims arise out of BMS’s nationwide marketing and distribution of Plavix,” 377 P.3d at 653, rather than considering whether each plaintiff’s claim has a legally cognizable nexus with the defendant’s forum activities, as due process requires. As a result, Bristol-Myers would accomplish under the guise of “specific jurisdiction” virtually the same sweeping “general jurisdiction” that the United States Supreme Court denounced as unconstitutional in Goodyear and Daimler. As the dissent aptly noted: [T]he majority expands specific jurisdiction to the point that, for a large category of defendants, it becomes indistinguishable from general jurisdiction. At least for consumer companies operating nationwide, with substantial sales in California, the majority creates the equivalent of general jurisdiction in California courts. What the federal high court wrought in Daimler . . . this court undoes today under the rubric of specific jurisdiction. 4 The Third Circuit has held that a test predicated on “but for” causation (the test in the Ninth Circuit) is overinclusive and instead requires a “meaningful link . . . between a legal obligation that arose in the forum and the substance of the plaintiffs’ claims.” Id. at 322, 324. Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 14 of 18 Page ID #:127 -10- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 28 377 P.3d at 663. “Such an aggressive assertion of personal jurisdiction is inconsistent with the limits set by due process.” Id. at 679. Indeed, rejecting a similarly expansive theory of personal jurisdiction, the Second Circuit explained: In Daimler, the [Supreme] Court criticized as “unacceptably grasping” plaintiffs’ request that it “approve the exercise of general jurisdiction in every State in which a corporation engages in a substantial, continuous, and systematic course of business.” It explained, “If Daimler’s California activities sufficed to allow adjudication of this . . . case in California, the same global reach would presumably be available in every other State in which [the subsidiary’s] sales are sizable.” The Court rejected such an “exorbitant exercise[ ] of all-purpose jurisdiction.” Brown, 814 F.3d at 639-40 (quoting Daimler, 134 S. Ct. at 761). Like the theories rejected in Daimler and Brown, Bristol-Myers potentially authorizes nationwide personal jurisdiction in virtually every case involving a product that is nationally marketed. Accordingly, the Bristol-Myers majority untenably stretches specific jurisdiction in a fashion that is every bit as “grasping” and “exorbitant” as the theory rejected by the Daimler Court as a violation of due process. In this case, Plaintiffs cannot credibly assert a basis for the exercise of specific jurisdiction as to the claims of the out-of-state Plaintiff Families. With the exception of the 3 California Plaintiff Families, all of the Plaintiff Families admit that the Mother Plaintiff ingested Zoloft or sertraline hydrochloride in states other than California. (Compl. ¶¶ 1-19.) None of the out-of-state Plaintiff Families allege that the Mother Plaintiff was prescribed or ingested Zoloft or sertraline in California, that the children Plaintiffs were injured, born, or died in California, or that the Pfizer Defendants’ activities in California caused the Plaintiffs’ alleged injuries. Thus, Plaintiffs cannot demonstrate that the Pfizer Defendants’ contacts with California gave rise to the claims of the out- of-state Plaintiff Families. B. The Out-of-State Plaintiffs Cannot Create Specific Jurisdiction by Joining Their Claims With California Plaintiffs Plaintiffs may argue that the presence of 3 California Plaintiff Families provides the relevant nexus for specific jurisdiction as to the out-of-state Plaintiff Families. But the Supreme Court has “consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’ Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 15 of 18 Page ID #:128 -11- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State.” Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). This is because “[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with other persons affiliated with the State.” Id. at 1123. Accordingly, “[t]he personal jurisdiction analysis therefore must be plaintiff-specific.” Arnold v. Goldstar Fin. Sys., Inc., 2002 WL 1941546, at *3 (N.D. Ill. Aug. 22, 2002); see also Shafik v. Curran, 2010 WL 2510194, at *4 (M.D. Pa. June 17, 2010). Evaluated individually, each of the out-of-state Plaintiff Families has failed to allege even a single connection to California and, therefore, dismissal for lack of personal jurisdiction is appropriate. An argument that personal jurisdiction can be created by joinder relies on an invented concept of supplemental specific jurisdiction that finds no support in the Supreme Court’s precedents. Indeed, “[i]t is well-established that the requirement for personal jurisdiction cannot be bypassed by proving proper joinder.” Level 3 Commc’ns, LLC v. Ill. Bell Tel. Co., 2014 WL 50856, at *2-3 (E.D. Mo. Jan. 7, 2014). 5 To permit a court to assert personal jurisdiction over a defendant based on the joinder of plaintiff claims “would unfairly allow Plaintiffs to bypass the requirements of personal jurisdiction.” Executone of Columbus, Inc. v. Inter-Tel, Inc., 2006 WL 3043115, at *6 (S.D. Ohio Oct. 4, 2006). Just as states cannot use long-arm statutes to extend their territorial jurisdiction beyond the scope permitted by the due process clause, see, e.g., Shaffer v. Heitner, 433 U.S. 186 (1977), they cannot use procedural rules to accomplish what they are barred from doing by statute. For example, in In re Testosterone, the court explained that federal appellate courts have held that “‘[t]here is no such thing as supplemental specific personal jurisdiction; if separate claims are pled, specific personal jurisdiction must independently exist for each claim and the existence of personal jurisdiction for one claim will not provide the basis for another claim.’” Id. at 1048 (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275 n.6 (5th Cir. 2006)). “Other circuit courts, in addition to the Fifth Circuit in Seiferth, have held that personal jurisdiction over 5 Vacated in part on other grounds on reconsideration, 2014 WL 1347531 (E.D. Mo. Apr. 4, 2014). Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 16 of 18 Page ID #:129 -12- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 defendant must be established as to each claim asserted.” Id. at 1049 (citing Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001), and Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289 (1st Cir. 1999)). “Under the theory plaintiffs propose, the alleged sale and promotion of [a product] within [the forum State], which allegedly caused a [a forum State] plaintiff’s injury, would subject defendants to general personal jurisdiction in [the forum State] for claims brought by any plaintiff who allegedly suffered injury by purchasing and using [the product] anywhere in the country. Such a result would be plainly contrary to ‘traditional notions of fair play and substantial justice.’” In re Testosterone, 164 F. Supp. 3d at 1049 (quoting Int'l Shoe, 326 U.S. at 316). Other courts have also recently held that specific jurisdiction may not be created by joining a plaintiff who has claims over which the court lacks personal jurisdiction with the claims of plaintiffs from the forum state. See In re Zofran, 2016 WL 2349105; Tulsa Cancer Inst., PLLC v. Genentech Inc., 2016 WL 141859, at *3-4 (N.D. Okla. Jan. 12, 2016). C. Joinder of McKesson Does Not Establish Specific Jurisdiction as to the Pfizer Defendants Plaintiffs may argue that the presence of McKesson, whose principal place of business is in California, creates specific jurisdiction over the Plaintiffs’ claims. However, as discussed above, personal jurisdiction cannot be satisfied by a third-party’s contact with the State. See Helicopteros, 466 U.S. at 417 (holding that the “unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction”); Walden, 134 S. Ct. at 1123 (“[A] defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.”). Thus, jurisdiction must “arise out of contacts that the ‘defendant himself’ creates with the forum State.” Walden, 134 S. Ct. at 1122 (emphasis original). Accordingly, “[p]ersonal jurisdiction over each defendant must be analyzed separately.” Am. Inst. of Intradermal Cosmetics, Inc. v. Soc’y of Permanent Cosmetic Professionals, 2013 WL 1685558, at *3 (C.D. Cal. Apr. 16, 2013) (internal quotation marks omitted); see also Rush v. Savchuk, 444 U.S. 320, 332 (1980) (“The requirements of International Shoe, however, must be met as to each defendant over whom a state court exercises jurisdiction.”). Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 17 of 18 Page ID #:130 -13- MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 sum, when their claims are evaluated individually, as due process and federal precedent requires, Plaintiffs have failed to sufficiently allege that the Pfizer Defendants’ connections with California gave rise to Plaintiffs’ claims. The Court may not, therefore, assert personal jurisdiction over the claims of the non-California Plaintiffs. CONCLUSION For the foregoing reasons, the Pfizer Defendants respectfully request that the Court dismiss the claims of all of the out-of-state Plaintiff Families pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Dated: November 2, 2016 Respectfully submitted, KAYE SCHOLER LLP By: /s/Pamela J. Yates Pamela J. Yates Attorney for Defendant Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC Case 8:16-cv-01947-DOC-KES Document 12-1 Filed 11/02/16 Page 18 of 18 Page ID #:131 8:16-cv-01947-DOC-KES Case 8:16-cv-01947-DOC-KES Document 12-2 Filed 11/02/16 Page 1 of 2 Page ID #:132 Case 8:16-cv-01947-DOC-KES Document 12-2 Filed 11/02/16 Page 2 of 2 Page ID #:133 [PROPOSED] ORDER GRANTING MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 PAMELA J. YATES (State Bar No. 137440) Email address: pamela.yates@kayescholer.com KATHRYN PODSIADLO (State Bar No. 299438) Email address: kathryn.podsiadlo@kayescholer.com KAYE SCHOLER LLP 1999 Avenue of the Stars, Suite 1600 Los Angeles, California 90067 Telephone: (310) 788-1000 Facsimile: (310) 788-1200 Attorneys for Defendants Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA COLTON O’REILLY, individually; TRACI O’REILLY, individually; KEVIN STANG, individually; PATTY CRUNDWELL, individually; TAYLOR STRENGTH, individually; MELISSA STRENGTH, individually; MIRACLE KNIGHTON, individually; NINA KNIGHTON, individually; JEREKRE OKORIOGHA, individually; CAROLINE OKORIOGHA, individually; S.B., a minor by and through his Guardian Ad Litem, MELISSA BISHOP, and MELISSA BISHOP individually; JOSEPH RIVER SMITH, individually; ANN GENDUSA- SMITH, individually; B.J.T.M., a minor by and through his Guardian Ad Litem JOLENE MCDOWELL-SUTTON, and JOLENE MCDOWELL-SUTTON, individually; DYLAN MULLINS, individually; CHERI JACOBS, individually; Plaintiffs, v. MCKESSON CORPORATION; PFIZER, INC.; PFIZER INTERNATIONAL LLC; J.B. ROERIG & CO.; GREENSTONE LLC, and DOES 1 through 100, inclusive, Defendants. Case No. 8:16-cv-01947-DOC-KES [PROPOSED] ORDER GRANTING DEFENDANTS PFIZER INC., PFIZER INTERNATIONAL LLC, AND GREENSTONE LLC’S MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION Judge: Hon. David O. Carter Date: December 5, 2016 Time: 8:30 a.m. Location: Court 9C [Filed concurrently with Motion to Stay proceedings] Case 8:16-cv-01947-DOC-KES Document 12-3 Filed 11/02/16 Page 1 of 2 Page ID #:134 [PROPOSED] ORDER GRANTING MOTION TO DISMISS OUT-OF-STATE PLAINTIFFS FOR LACK OF PERSONAL JURISDICTION 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 Defendants Pfizer Inc. (including its former division J.B. Roerig & Co.), Pfizer International LLC, and Greenstone LLC (collectively, the “Pfizer Defendants”), have moved to dismiss the claims of the 6 out-of-state Plaintiff Families in the above-captioned action pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. After reviewing the parties’ papers and arguments, the Court grants the motion. IT IS SO ORDERED. Dated: December __, 2016 ___________________________ United States District Judge Case 8:16-cv-01947-DOC-KES Document 12-3 Filed 11/02/16 Page 2 of 2 Page ID #:135