MotionredactedMotionCal. Super. - 2nd Dist.July 22, 201410 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jennifer Lenze, CA Bar #246858 Jaime E. Moss, CA Bar #285761 Lenze Kamerrer Moss, PLC 1300 Highland Ave., Suite 207 Manhattan Beach, CA 90266 T: (310) 322-8800 F: (310) 322-8811 jlenze@lkmlawfirm.com moss@lkmlawfirm.com Adam D. Peavy, Texas Bar #24029766 Justin Jenson, Texas Bar #24071095 Bailey Peavy Bailey Cowan Heckaman, PLLC 440 Louisiana St., Suite 2100 Houston, Texas 77002 T: (713) 425-7100 F: (713) 425-7101 apeavy@bpblaw.com jjenson@bpblaw.com Attorneys for Plaintiffs Keith D. Griffin, CA Bar #204388 Girardi & Keese 1126 Wilshire Blvd. Los Angeles, CA 90017 T: (213) 262-6777 F: (213) 481-1554 kgriffin@girardikeese.com SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES COORDINATION PROCEEDING SPECIAL TITLE [RULE 3.550(b)] IN RE JCCP 4786, PAXIL II BIRTH DEFECT CASES THIS DOCUMENT RELATES TO: Rothenberger, et al. v. McKesson Corporation, et al. Los Angeles County Superior Court, Case No. BC543200 Stinson, et al. v. McKesson Corporation, et al. Los Angeles County Superior Court, Case No. BC544357 JCCP No. 4786 [REDACTED]|PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION AS TO THE NON- CALIFORNIA PLAINTIFFS Date: October 28, 2016 Time: 1:45 p.m. Judge: Honorable Lisa Hart Cole Dept: 307 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION AS TO THE NON- CALIFORNIA PLAINTIFFS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wilson, et al. v. McKesson Corporation, et al. Mariposa County Superior Court, Case No. 10619 Galindo, et al. v. GlaxoSmithKline, LLC, et al. San Bernardino County Superior Court, Case No. CIVDS1505229 Guinn, et al. v. McKesson Corporation, et al. Tulare County Superior Court, Case No. 264585 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION AS TO THE NON- CALIFORNIA PLAINTIFFS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Lo INTRODUCTION sin nmu0isn nano ascension sacs i 5605.6 5505.5 45030855055... 153. 6005.45, RAS EEN 3 1 II. LEGAL STANDARD ...coooiiiititiit eects ete eae ees sees eae eee sees 4 III. ARGUMENT Lottie ete sae eae eet eae see sae sbeebs seen sees 6 A. The BMS Opinion is Mandatory and Binding on this Court ..........c..cccevviiriiiiiiininninecneeie ev e 6 1. Specific Jurisdiction Established in BMS ..........cccoooiieiiiiiiiiieniie cece seers sieeve anes 7 a. First Prong: Requisite Purposeful Availment Factor Is Satisfied in BMS..........ccccoovvinvenccncnne. 8 b. Second Prong: Plaintiffs’ Claims Arise From and Relate to BMS’s Forum-Directed Activities ......9 c. Third Prong: Exercising Specific Jurisdiction Is Reasonable Over BMS..........cccccooiiiininnences 11 d. The BMS Court Concluded That California Can Assert Specific Jurisdiction over BMS as to Nonresident Plaintiffs’ CLAIMS ........coueiiiriiiiiiiieiie iirc seers eae sae sees 12 B. Plaintiffs Have Demonstrated Facts Justifying Specific Jurisdiction over Defendant GSK............ 12 1. First Prong: GSK Purposefully Availed Itself of the Benefits and Protections of California...... 13 2.Second Prong: Plaintiffs’ Claims Arise From and Relate to GSK’s California-Directed Activities] 3. Third Prong: Exercising Jurisdiction Over GSK in California is Reasonable ...........c..ccccceeeenneeee 18 4. California Courts Can Assert Specific Jurisdiction over GSK as to Nonresident Plaintiffs’ Claims, and Plaintiffs Are Entitled t0 FEES .....ooviiiiimiiiiiie ieee eee eee eserves 2( IV, CONCLIISTOMN summers ssomsmmsasssmonsmeos sos nas ons sss ms mes ss sm sss ess 21 i MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Biogen Idec, Inc. v. GlaxoSmithKline LLC (S.D. Cal., Oct. 18, 2011, No. 10-CV-00608 BEN BGS) 2011 WL 4949042, at *1 ........cccevvereenennn. 2 Brown v. AST Sports Science, Inc. (E.D. Pa., June 28, 2002, No. CIV.A. 02-1682) 2002 WL 32345935 .....cooviiriieeniieeeiieeeeeeeeeenn 16, 17 Burger King Corp. v. Rudzewicz (1985) ATT ULS. 402, AT2 oe eee eae eae ee sheet estates ebb sh tena estaba seas 8 Clayworth v. Pfizer, Inc. (2010) 49 Cal.Ath 758, TOS5....neee eee eee eters eee stearate sabes ste esse esses sabe esse ase eesae esas esse enseeensens 2 Glaxo Group Ltd. v. Genentech, Inc. (C.D. Cal., June 15, 2010, No. SA 10-CV-2764-MRP) 2010 WL 11074653, at *1.....cccvvevrervrrenrennen. 2 In re Vaccine Cases 2005) 134 CalLAPD.ATIN A338, AAS... eee eee eee eee eee eee e eee esses et ae ee ease ee snaaes 2 (2005) pp Johnson v. GlaxoSmithKline, Inc. (2008) 166 Col ADDI. TATT, 1500s nmms0 mss so swam mens. 6505550 5005545. HT A 5 TER 0 STS. 2 Reid v. SmithKline Beecham Corp. (S.D. Cal. 2005) 366 F.Supp.2d 989, 901 «cerita eeeeee 2 Vons Companies, Inc. v. Seabest Foods, Inc. (L996) 14 ClALATR 3, AST ccs umn so wes nnn 55550 5005545505505 5555 S53 5508855 HS FAT 55 SEA 55 5,8,9,15 Wendell v. Johnson & Johnson (N.D. Cal., Apr. 19, 2011, No. C 09-04124 CW) 2011 WL 1481425, at *1 ...cccveevviiiiieienieeieeeeen, 2 World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297 «eens eee eee este ease ea eee estes sae eaten estates bese enbe snes ene 8,9 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION AS TO THE NON- CALIFORNIA PLAINTIFFS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs submit this Memorandum of Points and Authorities in opposition (“Opposition”) to Defendant GLAXOSMITHKLINE LLC’S (“GSK”) Omnibus Motion to Quash Service of Summons for Lack of Personal Jurisdiction as to the Non-California Plaintiffs (“Motion”). I. INTRODUCTION Defendant GSK has moved to dismiss the claims of 39 non-California Plaintiffs in five cases in this coordinated proceeding for lack of personal jurisdiction. Plaintiffs brought their claims against Defendants McKesson, a California distributor, and GlaxoSmithKline, a nonresident drug manufacturer for physical injuries and damages sustained by minors as a result of maternal ingestion of Paxil during pregnancy. The gravamen of GSK’s Motion is that this Court lacks both general and specific personal jurisdiction over GSK, a Delaware corporation, since it is neither “at home” in California, nor do the claims of non-California Plaintiffs bear a substantial connection to GSK’s in-State activities. Motion, pg. 1:5-25. GSK admits that it marketed and sold Paxil throughout the United States, including California. Motion, pg. 3:27-28. GSK consciously disregards that it sells hundreds of millions of dollars of pharmaceuticals each year, has past and ongoing contracts with California distributors (i.e. Defendant McKesson, a California corporation)!, and that it has an agent for service of process registered in California. GSK’s Responses to Plaintiffs’ Special Interrogatories, Set One, (“GSK’s Responses to SROGGS”), pg. 2:1-10. GSK has engaged in systematic, substantial, and continuous ! McKesson assists pharmaceutical manufacturers reach 285 million patients each day. McKesson’s “nationwide network of distribution centers, transportation channels and technology ensure that both our customers — and their patients — receive [your] products safely and at the right time.” Pharmaceutical Distribution for Manufacturers, http://www .mckesson.com/manufacturers/consumer-product/strategic-distribution/world-class-logistics/, last checked July 25, 2016. 1 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contacts with the State of California, has availed itself of the benefits and laws of California, and therefore is subject to both general and specific jurisdiction in this State. GSK has both sued and been sued on a myriad of legal issues in California fora — on its products,” fraudulent practices,’ patent infringement claims, trade practices,’ and employment law issues.’ These aforementioned cases highlight just a few of the lawsuits that GSK has prosecuted and defended in this forum State. GSK does not contest that California Plaintiffs can proceed with their claims against GSK in this Court.” The red herring that GSK presents is a focus on Plaintiffs’ contacts with California. According to binding case law, the actual focus is on the minimum contacts between the nonresident defendant (GSK) and the forum state (California) — that the nonresident Plaintiffs lack contact with the forum state does not defeat otherwise proper jurisdiction. Since GSK acknowledges that jurisdiction is proper in the California Plaintiffs’ cases, since it does have minimum contacts with California, then it is proper in nonresident Plaintiffs’ cases as well. Nonetheless, GSK has been litigating nonresident Plaintiffs’ cases alongside California Plaintiffs as part of this JCCP for over two years. Litigating all Plaintiffs, regardless of residence, in this JCCP will enure to the benefit of all injured Plaintiffs, since there will be case management orders providing for discovery schedules, bellwether trials, and coordinated expert discovery.® Granting this 2 E.g., Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal. App.4th 1497, 1502 (Paxil withdrawal cases); In re Vaccine Cases (2005) 134 Cal. App.4th 438, 445 (vaccines); Wendell v. Johnson & Johnson (N.D. Cal., Apr. 19, 2011, No. C 09-04124 CW) 2011 WL 1481425, at *1. 3 E.g., Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 765 (allegations that manufacturers unlawfully conspired to fix prices of brand-name pharmaceuticals in the U.S., including in California). 4 E.g., Biogen Idec, Inc. v. GlaxoSmithKline LLC (S.D. Cal., Oct. 18,2011, No. 10-CV-00608 BEN BGS) 2011 WL 4949042, at *1, aff'd (Fed. Cir. 2013) 713 F.3d 1090; Glaxo Group Ltd. v. Genentech, Inc. (C.D. Cal., June 15, 2010, No. SA 10-CV-2764-MRP) 2010 WL 11074653, at *1). 5 E.g., SmithKline Beecham Corp. v. Abbott Laboratories (9th Cir. 2014) 740 F.3d 471, 474. ® E.g., Reid v. SmithKline Beecham Corp. (S.D. Cal. 2005) 366 F.Supp.2d 989, 991. 7 See Jennifer A. Lenze Decl. at 15. 81d. at 8-11. 2 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion would expose GSK to defending lawsuits in multiple states; subject GSK to repetitious depositions, discovery, and arguments; incur burdens on courts in various jurisdictions to become familiarized with complex pharmaceutical litigation issues; and cause GSK to produce the same or similar witnesses, documents, and counsel in multiple states which will inevitably lead to duplicative efforts and burdensome costs.’ These are just a few of the examples of inefficiency that would flow from GSK’s proposed relief. GSK'’s Motion is nothing more than gamesmanship in hopes of fragmenting this coordinated proceeding. GSK’s attempt to dismiss the nonresident Plaintiffs would subject each Plaintiff to unfair prejudice and undue delay, because each would have to begin litigating their case from ground zero in another state, incur considerable unnecessary costs, and require an association of local counsel for both parties. Some nonresident Plaintiffs would foreseeably lose their ability to find justice due to the overwhelming costs and procedural hurdles. Additionally, it could result in inconsistent appellate decisions which will have far-reaching legal implications. In order to further support this Opposition, Plaintiffs propounded specific written discovery on GSK on August 10, 2016 in the form of requests for production of documents and special interrogatories. Defendant GSK served responses on September 13, 2016. Meanwhile, in the midst of the additional discovery being propounded and responded to, the Supreme Court of California issued a binding opinion on the exact issues presented in GSK’s Motion. The Supreme Court of California issued this opinion on August 29, 2016 in the case Bristol- Myers Squibb Company v. Superior Court (“BMS”) (Cal. 2016) 206 Cal.Rptr.3d 636 that is analogous and instructive. Bristol-Myers Squibb Company (“BMS”) is a nonresident pharmaceutical 91d. at 12-13. 3 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 manufacturer that conducts significant business in California. BMS moved to quash service of summons on the ground that the court lacked personal jurisdiction over it to adjudicate the claims of the 592 nonresident plaintiffs. BMS at 2. After an extensive procedural history, the Supreme Court of California concluded that personal jurisdiction existed over a nonresident defendant pursuant to California Code of Civil Procedure § 410.10. Specifically, it found that “the company's California activities are sufficiently related to the nonresident plaintiffs’ suits to support the invocation of specific jurisdiction, under which personal jurisdiction is limited to specific litigation related to the defendant’s state contacts.” BMS at 1. Further, the Appellate Court of Illinois recently issued a decision denying GSK’s motion to dismiss claims by nonresident plaintiffs for lack of personal jurisdiction, finding that (1) GSK purposefully availed itself of the privilege of conducting activities in Illinois, (2) plaintiffs made a prima facie showing that the claims directly arose from or related to GSK’s purposeful activities in Illinois, and (3) it was reasonable to require GSK to litigate in Illinois. M.M. ex rel. Meyers v. GlaxoSmithKline LLC, 2016 IL App (Ist) 151909, 2016 WL 4506714 (Aug. 26, 2016). For these reasons stated above, current case law, and the reasons discussed more fully below, Plaintiffs respectfully request that GSK’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction as to the Non-California Plaintiffs be denied. II. LEGAL STANDARD Pursuant to California’s long-arm statute, “a court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Code Civ. Proc., § 410.10. Personal jurisdiction can be general or specific. General jurisdiction may lie for all purposes if aj defendant has established a presence in the forum state by virtue of activities in the state which are 4 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “extensive or wide-ranging” or “substantial ... continuous and systematic.” Integral Development Corp. v. Weissenbach (2002) 99 Cal. App.4th 576, 583-84 (citations omitted). The question of whether a court may exercise specific jurisdiction over a nonresident defendant involves examining (1) whether the defendant has “purposefully directed” its activities at the forum state; (2) whether the plaintiff's claims arise out of or are related to these forum-directed activities, and (3) whether the exercise of jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice. Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 113, quoting International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement (1945) 326 U.S. 310, 316); Burger King Corp. v. Rudzewicz (1985) 471 U.S., 472-473; Helicopteros Nacionales De Columbia v. Hall, 466 U.S. at p. 414; Vons Companies, Inc. v. Seabest Foods, Inc., (1996) 14 Cal.4th at p. 446. A “claim need not arise directly from the defendant‘s forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction.” Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452-58; Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1068. Courts must analyze the relationship among the defendant, the forum, and the litigation. Helicopteros Nacionales de Colombia, S.A. v. Hall (1984) 466 U.S. 408, 414 (emphasis added). “It is the defendant, not the plaintiff or third parties, who must create contacts with the forum State.” Walden v. Fiore (2014) 134 S.Ct. 1115, 1126. “The defendant’s forum activities need not be directed at the plaintiff in order to give rise to specific jurisdiction.” Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 457 (citing Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 775). The plaintiff has the initial burden of demonstrating facts to support the first two factors, which establish minimum contacts with the forum state, and once established, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable under the third factor. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449; Snowney v. Harrah's 5 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062; Bristol-Myers Squibb Company v. Superior Court of San Francisco County, No. S221038 (Sup. Ct. CA Aug. 29, 2016), pg. 17; Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475-76. III. ARGUMENT A. The BMS Opinion is Mandatory and Binding on this Court The California Supreme Court heard oral argument in Bristol-Myers Squibb Company v. Superior Court (Cal. 2016) 206 Cal.Rptr.3d 636 on June 2, 2016 on the following issues: (1) Did the non-California plaintiffs establish specific jurisdiction over the claims against the nonresident pharmaceutical drug manufacturer?; and (2) Does general jurisdiction exist in light of Daimler AG v. Bauman (2014) 134 S. Ct. 746? After a thorough analysis, the California Supreme Court concluded that BMS is not subject to general jurisdiction in California. BMS at 8. Following issuance of the opinion on August 29, 2016, Plaintiffs served a letter on Defendant GSK on September 6, 2016 informing GSK of this opinion and respectfully requesting it withdraw its Motion.” The basis for Plaintiffs’ request to GSK to withdraw the Motion is stated herein. Defendant GSK responded on September 16, 2016 stating that GSK would not withdraw the Motion, citing, inter alia, that the motion to quash presented a question of federal law. The California Supreme Court’s decision in BMS is directly applicable to the Paxil II Birth Defect cases. Bristol-Myers Squibb Company (“BMS”), the manufacturer of Plavix, and McKesson Corporation, the distributor (and also a defendant in the Paxil II Birth Defect litigation), were sued by 86 California residents and 592 non-California residents in California superior court. BMS at 1. All complaints contained the same causes of action and allegations, and similar injuries. The actions were 10'See Jennifer A. Lenze Decl. at § 14. 6 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 coordinated in San Francisco Superior Court. BMS at 2. BMS moved to quash service of summons on the basis that the court lacked personal jurisdiction over it to adjudicate the 592 non-California residents. BMS at 2. BMS claimed it is incorporated in Delaware, headquartered in New York, and maintains operations in New Jersey. BMS at 2. BMS claimed it did not perform research, development, manufacturing, labeling, packaging, advertising, or marketing of Plavix in California. BMS at 2. However, BMS declared it maintains substantial operations in California, consisting of five offices employing 164 people, and also employs 250 sales representatives in California. BMS at 2. The Plavix plaintiffs put forth evidence showing that BMS maintained a registered agent for service of process in California, and sold 187 million Plavix pills to distributors and wholesales in California from 2006 to 2012, with sales revenue of $918 million. BMS at 2. The San Francisco superior court denied BMS’s motion to quash on the facts presented, reasoning that BMS’s sales and activities in California were sufficiently extensive to subject it to general jurisdiction in California. BMS appealed the decision. The Court of Appeal summarily denied the writ of mandate petition on the same day as the U.S. Supreme Court announced its decision in Daimler AG v. Bauman (2014) 134 S. Ct. 746. The California Supreme Court granted review in BMS and sent it back to the Court of Appeal for issuance of an order to show cause in light of Daimler. BMS at 3. The Court of Appeal denied the writ, but this time held that BMS’s activities in California were insufficient to subject it to general jurisdiction in California, but that California may properly exercise specific jurisdiction over BMS. BMS at 3. 1. Specific Jurisdiction Established in BMS As for specific jurisdiction, the California Supreme Court explained that in ascertaining the existence of specific jurisdiction, courts must analyze the relationship among the defendant, the forum, and the litigation. Helicopteros Nacionales de Colombia, S.A. v. Hall (1984) 466 U.S. 408, 414, quoting 7 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Shaffer v. Heitner (1977) 433 U.S. 186, 204. The question of whether a court may exercise specific jurisdiction over a nonresident defendant involves examining: (1) whether the defendant has “purposefully directed” its activities at the forum state; (2) whether the plaintiff's claims arise out of or are related to these forum-directed activities, and (3) whether the exercise of jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice. Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 113, quoting International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement (1945) 326 U.S. 310, 316; Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 775; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 457. The Court continued that a “claim need not arise directly from the defendant’s forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction.” Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452; Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1068). a. First Prong: Requisite Purposeful Availment Factor Is Satisfied in BMS The purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction and subjected to binding judgments in a forum solely as a result of “random, fortuitous, or attenuated” contacts. Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475.!! When a nonresident defendant “‘purposefully avails itself of the privilege of conducting activities within the forum State,’ [citation], it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the "The Due Process Clause “gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472, citing World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297. 8 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 risks are too great, severing its connection with the State.” World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297; Hanson v. Denckla (1958) 357 U.S. 235, 253. The BMS Court found that BMS purposefully availed itself of the privileges and benefits of California: “[T]here is no question that BMS has purposely availed itself of the privilege of conducting activities in California, invoking the benefits and protection of its laws, and BMS does not contend otherwise. Not only did BMS market and advertise Plavix in this state, it employs sales representatives in California, contracted with a California-based pharmaceutical distributor, operates research and laboratory facilities in this state, and even has an office in the state capital to lobby the state on the company’s behalf.” BMS at 10. Furthermore, BMS “actively and purposefully sought to promote sales of Plavix to California residents, resulting in California sales of nearly $1 billion over six years.” Id. b. Second Prong: Plaintiffs’ Claims Arise From and Relate to BMS’s Forum-Directed Activities “A claim need not arise directly from the [nonresident] defendant’s forum contacts in order to bg sufficiently related to the contact to warrant the exercise of specific jurisdiction. Rather, as long as the claim bears a substantial connection to the nonresident's forum contacts, the exercise of specific jurisdiction is appropriate. The due process clause is concerned with protecting nonresident defendants from being brought unfairly into court in the forum, on the basis of random contacts.” Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452.2 The Vons court assessed whether California courts could exercise specific jurisdiction over nonresident (Washington) companies for causes of action involving out-of-state injuries that did not arise directly from California contacts. The court 12 “The due process clause is concerned with protecting nonresident defendants from being brought unfairly into court in the forum, on the basis of random contacts. That constitutional provision, however, does not provide defendants with a shield against jurisdiction when the defendant purposefully has availed himself or herself of benefits in the forum.” Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452 (emphasis added). 9 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 found that personal jurisdiction was properly exercised over the nonresident (Washington) companies inl California because the forum contacts bore a substantial relation to the cause of action. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 451-56. In the BMS case, BMS did not contest that it engaged in nationwide marketing, promotion, and distribution of Plavix, and that it had California-based sales representatives and a California distributor, McKesson Corporation. BMS at 12. “As to the nonresident plaintiffs’ claims, the Court of Appeal understood plaintiffs’ complaints as alleging that BMS sold Plavix to both the California plaintiffs and the nonresident plaintiffs as part of a common nationwide course of distribution.” Id. Both the resident and nonresident plaintiffs’ claims are based on the same allegedly defectivd product and the assertedly misleading marketing and promotion of that product, which allegedly caused injuries in and outside the state. Thus, the nonresident plaintiffs’ claims bear a substantial connection to BMS’s contacts in California. BMS’s nationwide marketing, promotion, and distribution of Plavix created a substantial nexus between the nonresident plaintiffs’ claims and the company’s contacts in California concerning Plavix.!? Id. (emphasis added). “BMS’s forum contacts, including its California-based research and development facilities, are substantially connected to the nonresident plaintiffs’ claims because those contacts are part of the nationwide marketing and distribution of Plavix, a drug BMS researched and developed, that gave rise to all the plaintiffs’ claims.” BMS at 13. BMS embraced the risk of being sued in California by coordinating a nationwide marketing and distribution effort, and therefore was on notice that it could be sued in California by nonresident plaintiffs. BMS at 14. The BMS Court further added that “all the plaintiffs’ claims arise out of BMS’s nationwide marketing and distribution of Plavix. The claims are based not on ‘similar’ conduct, as our dissenting colleagues contend, but instead on a single, coordinated, nationwide course of conduct 13 “The circumstance that numerous nonresident plaintiffs have filed their claims alongside those of resident plaintiffs does not alter or detract from this substantial nexus.” BMS at 13. 10 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 directed out of BMS’s New York headquarters and New Jersey operations center and implemented by distributors and salespersons across the country.” BMS at 12. Based on BMS’s activities in California, the Court concluded that the second element of the specific jurisdiction analysis was satisfied. BMS at 14 (“plaintiffs’ claims concerning the allegedly defective design and marketing of Plavix bear a substantial nexus with or connection to BMS’s extensive contacts with California as part of Plavix’s nationwide marketing, its sales of Plavix in this state, and its maintenance of research and development facilities here so as to permit specific jurisdiction.”). c. Third Prong: Exercising Specific Jurisdiction Is Reasonable Over BMS Analyzing the third prong, the BMS Court found that BMS failed to carry its burden of showing that the exercise of personal jurisdiction over it was unreasonable or fundamentally unfair. “A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff’s interest in| obtaining relief.” Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113. As for the first factor of assessing the burden on the defendant litigating claims in California, the Court indicated that regardless of whether California exercises jurisdiction over nonresident plaintiffs’ claims, BMS is already going to have to defend against 86 California plaintiffs’ claims. BMS at 15. To highlight the alternative burden, the court noted that while the “addition of 592 nonresident plaintiffs is a significant added burden, [] the alternative is to litigate the claims of these other 592 nonresident plaintiffs in a scattershot manner in various other forums, in potentially up to 34 different states. Such an alternative would seem to be a far more burdensome distribution of BMS‘s resources in defending these cases than defending them in a single, focused forum.” /d. In regards to the second factor of California’s interest in providing a forum for plaintiffs, the court noted that (1) trying cases of resident and nonresident plaintiffs together could promote efficient 11 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adjudication, (2) California has an interest in protecting its consumers by ensuring foreign manufacturers comply with the state’s safety standards, and (3) California has an interest in regulating the conduct of McKesson Corporation. BMS at 16-17. Thus, California has a clear interest in providing a forum. Finally, nonresident plaintiffs chose to file in California, which is strong evidence that the forum is convenient to them. BMS at 17. d. The BMS Court Concluded That California Can Assert Specific Jurisdiction over BMS as to Nonresident Plaintiffs’ Claims The BMS Court concluded that while general jurisdiction may be lacking, the facts support that exercise of specific jurisdiction is proper. [W]e conclude that in light of BMS’s extensive contacts with California, encompassing extensive marketing and distribution of Plavix, hundreds of millions of dollars of revenue from Plavix sales, a relationship with a California distributor, substantial research and development facilities, and hundreds of California employees, courts may, consistent with the requirements of} due process, exercise specific personal jurisdiction over nonresident plaintiffs’ claims in this action, which arise from the same course of conduct that gave rise to California plaintiffs’ claims: BMS’s development and nationwide marketing and distribution of Plavix. BMS cannot establish unfairness....we conclude that the joint litigation of the nonresident plaintiffs’ claims with the claims of the California plaintiffs is not an unreasonable exercise of specific jurisdiction over defendant BMS. BMS at 18. The BMS case is binding upon the above-entitled actions. Under BMS, GSK’s motion to quash for lack of personal jurisdiction should be denied. B. Plaintiffs Have Demonstrated Facts Justifying Specific Jurisdiction over Defendant GSK The binding BMS case is directly germane to the case at hand. Asserting specific jurisdiction over GSK in California is proper. Plaintiffs have met the initial burden to establish facts justifying the assertion of specific personal jurisdiction. Plaintiffs’ opposition is based on case law, the stipulated facts produced in this litigation by Defendants GSK and McKesson, as well as Defendants’ written discovery responses (requests for production of documents, set #2; and special interrogatories, set #1). 12 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. First Prong: GSK Purposefully Availed Itself of the Benefits and Protections of California Defendant GSK’s relationship with California as it relates to Paxil is not “random, fortuitous, or attenuated.” Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475. GSK purposefully availed itself itself of the benefits and protections of California laws in that it engaged in marketing and advertising of Paxil in this State, employed sales representatives in California, paid individuals to speak about Paxil in California, and contracted with California-based McKesson Corporation for distribution of Paxil. GSK actively and purposefully promoted sales of Paxil to California residents, and nationwide to nonresidents alike under the same nationwide marketing scheme. GSK stood to gain hundreds of millions of dollars from sale of Paxil in California from 1993 to 2006. See BMS at 10. According to GSK’s stipulated jurisdictional facts (Exhibit A (“Exh. A”")), GSK had the following number of sales representatives promoting Paxil in California, which is closely equivalent to the 250 sales representatives employed by BMS (BMS at 2)'*: Year Number of GSK Sales Reps 2003 129 2004 209 2005 264 2006 160 GSK made approximately 1.5 million sales calls on healthcare providers in California between 1993 and 2006. Exh. A. As of May 11, 2015, there were 424 GSK employees residing in California, of which 243 were sales representatives. Exh. A. GSK paid 700 healthcare providers to speak about Paxil in California between 1993 and 2006. Exh. A. During this same time frame GSK paid healthcare providers to speak at 325 programs about Paxil in California. Exh. A. !4 See Jennifer A. Lenze Decl. at ] 16. 13 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GSK stipulated to the following facts about Paxil prescriptions written in California Exh. A: Year Number of Paxil Prescriptions Written in California 2011 25,592 2012 16,122 2013 13,302 January to July 2014 8,044 GSK also leased three properties in California — in 2014 GSK leased an office in San Diego, and] during 2015 GSK leased an office in Sacramento and La Jolla. Exh. A. Between the years 2001 and 2008, GSK rented offices in California for senior sales force members and their administrative assistants. Exh. A. GSK sold Paxil through McKesson, a California-based distributor. [||| KGTGTGTcTG 14 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs have sufficiently established facts to illustrate for this Court that GSK purposefully availed itself of the benefits and protections of California such that the first element of the specific jurisdiction test is met. 2. Second Prong: Plaintiffs’ Claims Arise From and Relate to GSK’s California- Directed Activities The Due Process clause is concerned with protecting nonresident defendants from being unfairly] haled into a forum on the basis of random contacts. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452. Nothing about Defendant GSK’s contacts with California are random such that the assertion of specific, personal jurisdiction to be unfair. GSK argues pre-BMS case law for the notion that nonresident Plaintiffs’ claims bear no connection to GSK’s activities in California. Motion, pg. 8:7- 15 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. However, as discussed more fully above, the BMS Court crafted a guiding analysis of the type of California activity by a nonresident Defendant that satisfies this prong. See BMS at 12-14. (See also discussion § III.A.1.b supra.) The Vons Court cites a federal circuit opinion stating that “forum contacts need not be directed at the plaintiff in order to warrant the exercise of specific jurisdiction, and that the ‘arising out of or relating to’ standard is in the disjunctive, and is intended as a relaxed, flexible standard, rather than one requiring that the plaintiff’s claim arise out of the forum contact in any narrow sense.” Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 455 (citing Akro Corp. v. Luker (Fed.Cir.1995) 45 F.3d 1541). Defendant GSK relies on a litany of highly distinguishable cases to contend that California courts may not exercise specific jurisdiction over a nonresident defendant sued by a nonresident plaintiff for injuries occurring outside the state. These are not persuasive. In Boaz, the defendant company conducted no business in California and had no employees here, making it highly distinguishable. Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 715 (defendant was not “licensed to do business in California, and has had neither salespersons, employees or representatives here, nor any offices, bank accounts, records or property in this state.”). In Brown, an unreported case, while the Pennsylvania district court stated that “meeting the requirements of specific personal jurisdiction is slightly less demanding” than general jurisdiction, the case centered on asserting specific personal jurisdiction involving the internet, which is much different than the manufacturing, testing, labeling, distributing, and selling of Paxil, a tangible object. Brown v. AST Sports Science, Inc. (E.D. Pa., June 28,2002, No. CIV.A. 02-1682) 2002 WL 32345935, at *4."> In Luberski, the court found that defendant 15 “In cases involving the internet where specific personal jurisdiction was found to exist, the cause of action arose from more than the defendants’ mere presence on the amorphous internet, but from actual harm occurring within the forum state.” 16 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “purposefully availed itself of the California forum.” Luberski, Inc. v. Oleficio F.LLI Amato S.R.L. (2009) 171 Cal.App.4th 409, 419. Nonetheless, GSK cited an excerpt taken out of context as follows: “it will be easier to bring together the evidence of what happened to the purportedly missing olive oil in California.” Luberski, Inc. v. Oleficio F.LLI Amato S.R.L. (2009) 171 Cal.App.4th 409, 419; Motion, pg 11:21-24. This is not applicable to the case at hand. We are not dealing with contracts for missing goods (i.e. olive oil), but rather we are dealing with severe personal injuries as a result of defective manufacturing and labeling of Paxil, misrepresentations in nationwide marketing campaigns, and negligence. GSK engaged in nationwide marketing, promotion, and distribution of Paxil, and specifically stipulated that “GSK marketed and sold Paxil throughout the United States, including California.” Exh. A. GSK had both California-based sales representatives and a California-based distributor. According to McKesson’s stipulated facts, out of 29 nationwide distribution centers, there are two distribution centers located in California, and both distribute Paxil.'® Exh. A. GSK sold Paxil through McKesson, and the current distribution of GSK products is governed by a Distribution and Performance Support Agreement executed in July 2010. Exh. A. GSK sold Paxil to both California and nonresident Plaintiffs as part of a common, nationwide distribution scheme. Both the California and nonresident Plaintiffs’ claims are grounded in the same defective product, negligence, strict liability, misleading marketing and promotion, and distribution channels that caused substantially similar injuries in and outside of the State.!” Therefore, the nonresident Plaintiffs’ claims bear a substantial connection to GSK’s contacts in California. Moreover, Brown v. AST Sports Science, Inc. (E.D. Pa., June 28, 2002, No. CIV.A. 02-1682) 2002 WL 32345935, at *5. This case is not helpful guidance, as it focuses on conduct using the internet, which is abstract. 16 Plaintiffs believe and therefore allege that other of McKesson’s 29 distribution centers distribute Paxil as well. '7 See Jennifer A. Lenze Decl. at 15. 17 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GSK'’s nationwide marketing, promoting, advertising, selling, manufacturing, testing, labeling, and distributing of Paxil created a substantial nexus between the nonresident Plaintiffs’ claims and GSK’s contacts in California relating to Paxil. GSK’s operation - by its very nature of manufacturing, testing, marketing, advertising, labeling, contracting, packaging, distributing, and selling pharmaceutical drugs, like Paxil — involves a high degree of interstate activity. A consequence of this business model is that it would foreseeably cause injury to individuals in distant fora, requiring it to defend lawsuits there.'® FEE EE FEE co ccd in nationwide marketing and promotion, employed California-based sales representatives, and paid healthcare providers to speak in California, it embraced the risk of being held accountable and sued in California by both residents and nonresidents alike. All Plaintiffs’ claims arise out of GSK’s nationwide marketing and distribution of Paxil." As in BMS, it is reasonable to conclude in this case that the claims of resident and nonresident Plaintiffs are based on a single, coordinated, nationwide course of conduct directed out of GSK’s Pennsylvania headquarters and Delaware/North Carolina operations. Motion, pg. 1:10-13. See also BMS at 12 (“BMS’s nationwide marketing, promotion, and distribution of Plavix created a substantial nexus between the nonresident plaintiffs’ claims and the company’s contacts in California concerning Plavix.”). Plaintiffs have illustrated facts to conclude that GSK’s contacts bear a substantial nexus with, or connection to, California. Plaintiffs have satisfied the second prong of the specific jurisdiction analysis. 3. Third Prong: Exercising Jurisdiction Over GSK in California is Reasonable 81d. 1d. 18 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GSK cannot carry its burden to prove that the exercise of personal jurisdiction is unreasonable or fundamentally unfair in California. “A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief.” Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113. (See also discussion § I1I.A.1.c supra.) GSK will have to defend against California Plaintiffs’ claims regardless whether this Court exercises jurisdiction over nonresident Plaintiffs’ claims.” While in BMS there were 592 nonresident plaintiffs that had the opportunity to add a significant burden to the California court, there are only approximately 39 nonresident Plaintiffs in this litigation, which does not rise to the burdensome level seen in the BMS case. In the alternative, if this Court is not inclined to exercise jurisdiction, the nonresident Plaintiffs’ claims will be scattered across different states, placing a larger burden for GSK to defend these Paxil cases. Such a decision would be unreasonable, since the first option is to deny GSK’s Motion and maintain these nonresident Plaintiffs in the coordinated proceeding in this Court. Trying the cases of California resident and nonresident Plaintiffs together in a coordinated proceeding with a bellwether trial schedule will promote efficient adjudication, and benefit the California Plaintiffs’ claims to come to an expeditious, just resolution.>! BMS at 18 (“California has an interest in ensuring that litigation brought by its residents is resolved in a timely fashion. By separating the nonresident plaintiffs from the resident plaintiffs and forcing the nonresidents to sue in other states, it is fair to anticipate delays in the California proceedings that would be created by the litigation and appeals of discovery and factual conflicts in the various other forums.”). 20 See Jennifer A. Lenze Decl. at 15. 21 See Jennifer A. Lenze Decl. at 4 10. 19 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California also has a substantial interest in protecting its consumers by ensuring foreign manufacturers, like Defendant GSK, comply with the State’s safety standards. BMS at 16 (“This interest] is further underscored by the substantial body of California law aimed at protecting consumers from the potential dangers posed by prescription medication, including warnings about serious side effects and prohibiting false and misleading labeling.”). California jurors have an interest in ensuring that their peers are safe against harms caused by foreign manufacturers. California has a further, and enormous, interest in regulating the conduct of California-based McKesson Corporation. Nonresident Paxil Plaintiffs chose to file in California, and by their actions, it is presumably strong evidence that the forum is convenient to them. See BMS at 17. Thus, California has a clear interest in providing a forum for resident and nonresident Paxil Plaintiffs. 4. California Courts Can Assert Specific Jurisdiction over GSK as to Nonresident Plaintiffs’ Claims, and Plaintiffs Are Entitled to Fees Accordingly, the BMS opinion issued by the California Supreme Court renders Defendant GSK’s Omnibus Motion to Quash Service of Summons For Lack of Personal Jurisdiction as to the Non California Plaintiffs baseless. Plaintiffs respectfully requested that Defendant GSK withdraw its Motion, which it has not done.?? Under CCP § 128.5(a), “a trial court may order a party, the party’s attorney, or both to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” The statute defines “frivolous” as totally and completely without merit or for the sole purpose of harassing an opposing party. Based on the BMS decision issued on August 29, 2016, GSK’s Omnibus Motion to Quash 22 See Jennifer A. Lenze Decl. at § 14. 20 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Service of Summons For Lack of Personal Jurisdiction as to the Non-California Plaintiffs is without merit and failure to withdraw the motion resulted in unnecessary delay in this litigation. Plaintiffs put Defendant GSK on notice of CCP § 128.5(a) in the letter served on September 6, 2016.% Plaintiffs respectfully ask this Court to award fees incurred as a result of opposing this Motion. IV. CONCLUSION For the reasons stated in this Opposition, Plaintiffs respectfully request that this Court deny Defendant GSK’s Omnibus Motion to Quash Service of Summons For Lack of Personal Jurisdiction as to the Non-California Plaintiffs. Date: September 29, 2016 Respectfully submitted, By: Jennifer A. Lenze Jaime E. Moss Lenze Kamerrer Moss, PLC Adam D. Peavy Justin Jenson Bailey Peavy Bailey Cowan Heckaman, PLLC Keith D. Griffin Girardi & Keese Attorneys for Plaintiffs 2 See Jennifer A. Lenze Decl. at § 14. 21 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION EXHIBIT A CONDITIONALLY UNDER SEAL EXHIBIT B CONDITIONALLY UNDER SEAL EXHIBIT C CONDITIONALLY UNDER SEAL EXHIBIT D CONDITIONALLY UNDER SEAL EXHIBIT E CONDITIONALLY UNDER SEAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I certify that I am over the age of 18 years and not a party to the within action; that my business address is: LENZE KAMERRER MOSS, PLC 1300 Highland Ave., Suite 207 Manhattan Beach, CA 90266 On September 29, 2016, I served the foregoing documents described as: [REDACTED]|PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION ASTO THE NON-CALIFORNIA PLAINTIFFS On the parties in this action by placing a true copy thereof in a sealed envelope addressed as Stated ( ) on the attached mailing list (X) as follows: On interested parties in this action through the use of the California IN RE JCCP 4786, Paxil Birth Defect Cases II Website maintained by Case Anywhere. I caused the foregoing document to be transmitted to Case Anywhere for electronic service in the following manner (check one): X Iprovided the document(s) listed above electronically to Case Anywhere through the Case Anywhere website pursuant to the instructions on that website. [The document will be deemed served on the date that it was uploaded to the website as indicated by the Case Anywhere system. ] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 29, 2016 at Manhattan Beach, California. Brandy Torres Brandy Torres 22 MEMORANDUM IN OPPOSITION TO DEFENDANT GLAXOSMITHKLINE LLC’S OMNIBUS MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION
