Krueger et al v. Johnson & Johnson, Inc. et al

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.July 3, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ___________________________________ ) JEAN KRUEGER, et al., ) Civil A. No. 3:17-cv-03945 ) (FLW)(LHG) Plaintiffs, ) ) v. ) ) JOHNSON & JOHNSON, et al., ) ) Defendants. ) ________________________________ ) NOTICE OF DEFENDANTS’ JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION TO DISMISS 76 PLAINT IFFS’ CLAIMS FOR LACK OF PERSONAL JURISDICTION PLEASE TAKE NOTICE Defendants Johnson & Johnson (incorrectly sued as Johnson & Johnson Inc.) and Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. will move before this Honorable Court on August 21, 2017, or as soon thereafter as counsel may be heard, for an Order dismissing 76 Plaintiffs’ claims for lack of personal jurisdiction. PLEASE TAKE FURTHER NOTICE that in support of this Motion to Dismiss 76 Plaintiffs’ Claims for Lack of Personal Jurisdiction, defendants will rely upon the accompanying Brief in Support, Certification of Julie L. Tersigni and exhibits filed herewith. PLEASE TAKE FURTHER NOTICE that a Proposed Order is attached. Case 3:17-cv-03945-FLW-LHG Document 43 Filed 07/03/17 Page 1 of 2 PageID: 1596 2 Dated: July 3, 2017 s/Susan M. Sharko Susan M. Sharko DRINKER BIDDLE & REATH LLP 600 Campus Drive Florham Park, New Jersey 07932 Telephone: 973-549-7000 Facsimile: 973-360-9831 E-mail: susan.sharko@dbr.com Gene M. Williams SHOOK, HARDY & BACON L.L.P. JPMorgan Chase Tower 600 Travis St., Suite 3400 Houston, TX 77002 Telephone: 713-227-8008 Facsimile: 713-227-9508 gmwilliams@shb.com John H. Beisner SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 Telephone: 202-371-7000 Facsimile: 202-661-8301 john.beisner@skadden.com Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc., now known as Johnson & Johnson Consumer Inc. Case 3:17-cv-03945-FLW-LHG Document 43 Filed 07/03/17 Page 2 of 2 PageID: 1597 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ___________________________________ ) JEAN KRUEGER, et al. ) Civil A. No. 3:17-cv-03945- ) FLW-LHG Plaintiffs ) ) ) v. ) ) JOHNSON & JOHNSON, et al. ) ) Defendants ) ___________________________________ ) _______________________________________________________________ DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MEMORANDUM OF LAW IN SUPPORT OF THE IR MOTION TO DISMISS 76 PLAINTIFFS’ CLAIMS FOR LACK OF PERSONAL JURISDICTION ____________________________________________________________ DRINKER BIDDLE & REATH LLP A Delaware Limited Liability Partnership 600 Campus Drive Florham Park, New Jersey 07932 (973) 549-7000 SHOOK, HARDY & BACON L.L.P. JPMorgan Chase Tower 600 Travis St., Suite 3400 Houston, TX 77002 (713) 227-8008 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 (202) 371-7000 Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 1 of 31 PageID: 1598 Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc., now known as Johnson & Johnson Consumer Inc. Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 2 of 31 PageID: 1599 i TABLE OF CONTENTS Page BACKGROUND ............................................................................................... 3 ARGUMENT..................................................................................................... 6 I. GENERAL JURISDICTION IS LACKING BECAUSE THE JOHNSON & JOHNSON DEFENDANTS’ CONTACTS WITH MISSOURI ARE INSUFFICIENT TO RENDER THEM ESSENTIALLY “AT HOME” THERE. ....................................................... 9 II. SPECIFIC JURISDICTION IS LACKING FOR THE 76 PLAINTIFFS WHOSE CLAIMS HAVE NO CONNECTION TO MISSOURI. ....................................................................................... 14 CONCLUSION .......................................................................................... 23 Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 3 of 31 PageID: 1600 ii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Addelson v. Sanofi S.A., No. 4:16CV01277 ERW, 2016 WL 6216124 (E.D. Mo. Oct. 25, 2016) ................................................................. 13, 18 Adkins v. Nestle Purina PetCare Co., 973 F. Supp. 2d 905 (N.D. Ill. 2013) ........................................................... 19 Allaham v. Naddaf, 635 F. App’x 32 (3d Cir. 2015) .......................................................... 9, 15 In re Asbestos Products Liability Litigation (No. VI), No. 02-md-875, 2014 WL 4695743 (E.D. Pa. Apr. 14, 2014) ....................... 6 In re Bard IVC Filters Products Liability Litigation, No. 15-2641, 2016 U.S. Dist. LEXIS 149786 (D. Ariz. Oct. 27, 2016) ............................................................... 7, 18, 22 Beard v. Smithkline Beecham Corp., No. 4:15-CV-1833 RLW, 2016 WL 1746113 (E.D. Mo. May 3, 2016) ...... 18 BNSF Railway Co. v. Tyrrell, No. 16-405, 2017 WL 2322834 (U.S. May 30, 2017) ................... 1, 2, 10, 13 Bristol-Myers Squibb Co. v. Superior Court, No. 16-466, 2017 WL 2621322 (U.S. June 19, 2017) ....................... 3, 20, 21 Campbell v. Mars, Inc., No. 16-4035, 2016 U.S. Dist. LEXIS 161996 (E.D. Pa. Nov. 22, 2016) ...................................................................... 16 Chavez v. Dole Food Co., 836 F.3d 205 (3d Cir. 2016) .................................................................... 2 Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 4 of 31 PageID: 1601 iii Choi v. Damul Corp., No. 12-2440 (JLL), 2014 WL 314669 (D.N.J. Jan. 27, 014) ....................... 8 Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273 (4th Cir. 2009) ................................................................... 9 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ..................................................................... passim Denton v. Air & Liquid Systems Corps., No. 13-cv-1243-SMY-DGW, 2015 WL 738659 (S.D. Ill. Feb. 19, 2015) ...................................................................... 19 Farber v. Tennant Truck Lines, Inc., 84 F. Supp. 3d 421 (E.D. Pa. 2015) ................................................ 10, 14 In re FMC Corp. Patent Litigation, 422 F. Supp. 1163 (J.P.M.L. 1976) ............................................................... 6 Fuentes v. Mehra, No. 14-8118 (RBK/KMW), 2015 WL 3754705 (D.N.J. June 15, 2015) ...... 10 General Electric Co. v. University of Virginia Paten Foundation, No. 14-C-1529, 2015 WL 1246087 (E.D. Wis. Mar. 18, 2015) ................... 11 George v. Shadow Ridge Properties, LLC, No. 4:14-CV-1167 (CEJ), 2015 WL 300389 (E.D. Mo. Jan. 22, 2015) ......... 4 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ........................................................................... 9 Gray v. Apple Inc., No. 13-cv-7798 (KM) (MAH), 2016 WL 4149977 (D.N.J. Aug. 3, 2016) ........................................................... 10, 12, 14, 16 Guillette v. PD-RX Pharmaceuticals Inc., No. 5:15-cv-00564-R, 2016 WL 3094073 (W.D. Okla. June 1, 2016) .............................................................. 13, 19 Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 5 of 31 PageID: 1602 iv Hill v. Capital One Bank (USA), N.A., No. 14-cv-6236, 2015 WL 468878 (N.D. Ill. Feb. 3, 2015) ......................... 12 Holizna v. Boston Scientific Corp., No. 2:12-cv-06173, 2013 U.S. Dist. LEXIS 50311 (S.D. W. Va. Apr. 8, 2013) ..................................................................... 7 IMO Industies, Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) .............................................................. 7, 15 International Shoe Co. v. Washington, 326 U.S. 310 (1945) .......................................................................... 9, 15 Keeley v. Pfizer Inc., No. 4:15CV00583 ERW, 2015 WL 3999488 (E.D. Mo. June 1, 2015) .................................................................. 13, 18 Kipp v. Ski Enterprise Corp. of Wisconsin, 783 F.3d 695 (7th Cir. 2015) ................................................................. 11 Krishanti v. Rajaratnam, No. 2:09-cv-05395 (JLL)(JAD), 2014 WL 1669873 (D.N.J. Apr. 28, 2014) ......................................................................... 10 In re Linerboard Antitrust Litigation, No. 04-4001, 2005 WL 1625040 (E.D. Pa. July 11, 2005) ............................ 6 Locke v. Ethicon Inc., 58 F. Supp. 3d 757 (S.D. Tex. 2014) .................................................... 13 Marten v. Godwin, 499 F.3d 290 (3d Cir. 2007) .................................................................... 8 Martinez v. Aero Caribbean, 764 F.3d 1062 (9th Cir. 2014) ............................................................... 11 McCourt v. A.O. Smith Water Products Co., No. 14-221, 2015 WL 4997403 (D.N.J. Aug. 20, 2015) .............................. 13 Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 6 of 31 PageID: 1603 v In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 241 F.R.D. 435 (S.D.N.Y. 2007) ................................................................... 6 Munns v. Clinton, 822 F. Supp. 2d 1048 (E.D. Cal. 2011) .................................................. 4 N.C.C. Motorsports, Inc. v. K-VA-T Food Stores, Inc., 975 F. Supp. 2d 993 (E.D. Mo. 2013) ........................................................... 7 Neeley v. Wolters Kluwer Health, Inc., No. 4:11-CV-325 JAR, 2013 WL 3929059 (E.D. Mo. July 29, 2013) ......... 18 Patry’s Pearah v. Intercontinental Hotel Group PLC, No. 2:15-cv-07354 (WJM), 2016 U.S. Dist. LEXIS 84300 (D.N.J. June 29, 2016) ........................................................................ 16 Peek v. Golden Nugget Hotel & Casino, 806 F. Supp. 555 (E.D. Pa. 1992) ........................................................... 8 Smith v. S&S Dundalk Engineering Works, Ltd., 139 F. Supp. 2d 610 (D.N.J. 2001) ................. ...................................... 15 Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221 (2d Cir. 2014) .................................................................. 11 Spear v. Marriott Hotel Services, Inc., No. 15-6447, 2016 WL 194071 (E.D. Pa. Jan. 15, 2016) ...................... 11, 13 Stampone v. Fopma, 567 F. App’x 69 (3d Cir. 2014) ................................................................ 8 Stinnett v. Atlantic City Showboat, Inc., No. 07-4743, 2008 WL 1924125 (E.D. Pa. Apr. 29, 2008) ......................... 15 Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381 (E.D.N.Y. 2015) ..................................................... 13 In re Testosterone Replacement Therapy Products Liability Litigation Coordinated Pretrial Proceedings, 164 F. Supp. 3d 1040 (N.D. Ill. 2016) ................................................... 17, 21 Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 7 of 31 PageID: 1604 vi Ware v. Ball Plastic Container Corp., 432 F. Supp. 2d 434 (D. Del. 2006) .............................................................. 8 In re Zofran (Ondansetron) Products Liability Litigation, No. 1:15-cv-13760-FDS, 2016 WL 2349105 (D. Mass. May 4, 2016) .................................................................... 6, 17, 18 STATE CASE State ex rel. Norfolk Southern Railway Co. v. Dolan, No. SC95514, 2017 WL 770977 (Mo. Feb. 28, 2017) ....... ............ 12, 13, 19 STATUTE 28 U.S.C. § 1391(b) ................................................................................... 23 Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 8 of 31 PageID: 1605 Defendants Johnson & Johnson (“J&J”) and Johnson & Johnson Consumer Inc., f/k/a Johnson & Johnson Consumer Companies, Inc. (“JJCI”) (collectively, the “Johnson & Johnson defendants”) respectfully submit this Memorandum of Law in Support of their Motion to Dismiss 76 Plaintiffs’ Claims for Lack of Personal Jurisdiction. A list of plaintiffs subject to this motion is set forth in Exhibit 1 to the Certification of Julie L. Tersigni, Esq. (“Tersigni Cert.”). This case was brought by 79 plaintiffs against the Johnson & Johnson defendants and Imerys Talc America, Inc. (“Imerys”) in state court in Missouri, alleging that the use of JJCI talcum powder products aused them or their decedents to develop ovarian cancer. But 76 of these plaintiffs do not allege that they or their decedents purchased, used or were injured by a JJCI talcum powder product in Missouri. Indeed, 76 plaintiffs do not allege any connection between their claims and the State of Missouri. Accordingly, their claims against the Johnson & Johnson defendants must be dismissed for lack of personal jurisdiction. First, the Johnson & Johnson defendants are not subject to general jurisdiction in Missouri under the exacting standards the U.S. Supreme Court set forth in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and recently reiterated in BNSF Railway Co. v. Tyrrell, No. 16-405, 2017 WL 2322834, at *9-10 (U.S. May 30, 2017). Under Daimler, an out-of-state defendant is only subject to general jurisdiction in the forum state if its contacts with that state “are so constant and Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 9 of 31 PageID: 1606 2 pervasive ‘as to render [it] essentially at home in the forum State.’” Id. at 751 (emphasis added) (citation omitted). As the Third Circuit has noted, after Daimler, “it is ‘ incredibly difficult to establish general jurisdiction [over a corporati n] in a forum other than the place of incorporation or principal place of business.’” Chavez v. Dole Food Co., 836 F.3d 205, 223 (3d Cir. 2016) (emphasis added) (citation omitted). Here, plaintiffs cannot meet the Supreme Court’s high standards to establish general jurisdiction over th Johnson & Johnson defendants in Missouri because the First Amended Petition (“FAP”) merely alleges that the Johnson & Johnson defendants conducted business and sold their products in Missouri. (FAP ¶¶ 82, 84.) As the Supreme Court expr ssly stated in BNSF, however, “in-state business . . . does not suffice to permit the assertion of general jurisdiction.” 2017 WL 2322834, at *10. Moreover, the Johnson & Johnson defendants’ uncontroverted affidavits make clear tht neither entity has contacts “so constant and pervasive ‘as to render [it] essentially at home in’” Missouri. Daimler, 134 S. Ct. at 751 (citation omitted). Second, a Missouri court would lack specific jurisdiction over the Johnson & Johnson defendants with respect to the 76 plaintiffs whose claims have no connection to Missouri because they do not allege that their claims arise from any of the defendants’ activities in Missouri, a requirement also recognized by Daimler. To the contrary, these plaintiffs allege no connection at all between their claims Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 10 of 31 PageID: 1607 3 and Missouri, which is plainly insufficient for specific jurisdiction. Nor can the 76 plaintiffs whose claims have no connection to Missouri manufacture personal jurisdiction by joining their claims with those of the three plaintiffs who do allege a connection to Missouri. Rather, in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466, 2017 WL 2621322 (U.S. June 19, 2017), the Supreme Court resoundingly rejected such a theory as fundamentally in conflict with the due process principles underlying its personal jurisdiction jurisprudence. For all of these reasons, discussed more fully below, the Court should dismiss the claims of all plaintiffs for lack of personal jurisdiction. BACKGROUND In this case, 79 plaintiffs from 26 states and the District of Columbia sued defendants in Missouri state court, alleging that tey or their decedents developed ovarian cancer and suffered related injuries as a result of using JJCI’s Baby Powder® and Shower to Shower® products, which contain talcum powder. (FAP ¶¶ 1, 2-80.) Plaintiffs allege that the Johnson & Johnson defendants “manufacture[d], test[ed], packag[ed], promot[ed], market[ed], distribut[ed], label[ed] and/or s[old]” these products, and that Imerys mined talc for use in the products. (Id. ¶¶ 1, 82, 84, 87.) Plaintiffs further allege that the Johnson & Johnson defendants “regularly transacted, solicited, an conducted business in all States of the United States, including the State of Missouri.” (Id. ¶¶ 82, 84.) Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 11 of 31 PageID: 1608 4 Plaintiffs allege that talcum powder is “unreasonably dangerous and defective” and assert claims sounding in, inter alia, failure to warn, negligence and breach of warranty, seeking actual and punitive damages. (Id. ¶¶ 1, 124-32, 142-49, 157-64, 172-221.) Of the 79 plaintiffs, only three allege any connection to the state of Missouri. Three plaintiffs (Jean Krueger and Alice Rhoden, who are Missouri residents; and Sondra Turner, who is a Georgia resident) allege that ey purchased and used talcum powder in Missouri and developed ovarian cancer in Missouri. (Id. ¶¶ 2, 56, 64.) The remaining 76 plaintiffs allege no connection whatsoever between the State of Missouri and their alleged injuries. (Id. ¶¶ 3-55, 57-63, 65-80.)1 The Johnson & Johnson defendants are corporations organized under the laws of New Jersey with their principal places of business in New Jersey. (Id. ¶¶ 1 Plaintiffs Frank Alberding and Delbert Leath, as representatives of Donna Alberding and Karen Leath respectively, are Missouri residents but do not allege that their decedents purchased or applied talcum powder in Missouri. (FAP ¶¶ 3, 35.) As a result, Messrs. Alberding’s and Leath’s claims that they are currently Missouri residents are insufficient to establish personal jurisdiction over defendants with respect to the claims of their decents. See, e.g., George v. Shadow Ridge Props., LLC, No. 4:14-CV-1167 (CEJ), 2015 WL 300389, at *4 (E.D. Mo. Jan. 22, 2015) (finding no personal jurisdiction where “[t]he only conduct alleged related to Missouri [wa]s based wholly on the fact that plaintiff reside[d] in Missouri”); see also Munns v. Clinton, 822 F. Supp. 2d 1048, 1078 (E.D. Cal. 2011) (allegations were “insufficient to support a personal jurisdiction finding” because the personal representative’s “residence [wa]s irrelevant to the personal jurisdiction inquiry” and there were “no allegations in the Complaint” pertaining to the decedent’s actions in the forum state). Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 12 of 31 PageID: 1609 5 81, 83; Aff. of Lacey Elberg (“Elberg Aff.”) ¶ 2, Aug. 10, 2016 (attached as Ex. 2 to Tersigni Cert.); Aff. of Rosa Son (“Son Aff.”) ¶ 2, Dec. 13, 2016 (attached as Ex. 3 to Tersigni Cert.).) Moreover, J&J is a holding company and does not design, manufacture or market Baby Powder® or Shower to Shower®; nor does it sell, distribute, or introduce Baby Powder® or Shower to Shower® into interstate commerce at all, let alone into Missouri. (Elberg Aff. ¶¶ 6-7.) And JJCI, which does design, manufacture and market Baby Powder® and Shower to Shower®, “does not manufacture, research, develop, design, or test” these products in Missouri. (Son Aff. ¶ 7.) Plaintiffs’ only allegations regarding the Johnson & Johnson defendants’ activities in Missouri is that they “introduced [their] products into interstate commerce with knowledge and the intnt hat such products be sold in . . . Missouri.” (FAP ¶ 88.) Plaintiffs filed their First Amended Petition in the Circuit Court of the City of St. Louis, Missouri, on January 18, 2017. On March 7, 2017, the Johnson & Johnson defendants removed this action to the U.S. District Court for the Eastern District of Missouri pursuant to 28 U.S.C. § 1332(a) based on diversity of citizenship.2 (Notice of Removal, ECF No. 1.) The case was transferred by the Judicial Panel on Multidistrict Litigation to this Court on June 2, 2017. (Transfer Order, ECF No. 32.) 2 All of the defendants separately moved to dismiss plaintiffs’ claims for lack of personal jurisdiction. (ECF Nos. 4, 5, 21.) Those motions were not decided prior to transfer. Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 13 of 31 PageID: 1610 6 ARGUMENT “In a multidistrict litigation, a transferee court has personal jurisdiction over a defendant only if the transferor court would have had jurisdiction.” In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-cv-13760-FDS, 2016 WL 2349105, at *3 (D. Mass. May 4, 2016) (citing In re FMC Corp. Patent Litig., 422 F. Supp. 1163, 1165 (J.P.M.L. 1976) (per curiam)). In deciding whether personal jurisdiction was prope in the transferor court, however, an MDL court considers the law of its circuit. See, e.g., In re Linerboard Antitrust Litig., No. 04-4001, 2005 WL 1625040, at *4 (E.D. Pa. July 11, 2005) (explaining that “[c]ourts in the Third Circuit and other Courts of Appeals have held that, although the law of the transferor court merits consideration, only the law of the transferee court is binding on issues of federal law in an action transferred pursuant to 28 U.S.C. § 1407” and colleting cases that have “specifically held that a transferee court must follow the law of its Circuit in deciding questions of federal jurisdiction in cases transferred pursuant to § 1407”); In re Asbestos Prods. Liab. Litig. (No. VI), No. 02-md-875, 2014 WL 4695743, at *1 (E.D. Pa. Apr. 14, 2014) (“On issues of federal law or federal procedure, the MDL transferee court applies the law of the circuit in which it sits (here, the Third Circuit).”); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 241 F.R.D. 435, 439 (S.D.N.Y. 2007) (“[T]he law of the transferee circuit Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 14 of 31 PageID: 1611 7 controls pretrial issues such as whether the court has subject matter or personal jurisdiction over the action, or whether the cases hould be remanded to state court because the cases were not properly removed.”); Holizna v. Bos. Sci. Corp., No. 2:12-cv-06173, 2013 U.S. Dist. LEXIS 50311, at *10 (S.D. W. Va. Apr. 8, 2013) (explaining that MDL courts apply the long-arm statu e of the transferor forum, but they apply the law of their own circuits to the due process analysis). Because “[t]he Missouri long-arm statute operates ‘within the specific categories enumerated in the statutes to the full extent permitted by the Due Process Clause,’” N.C.C. Motorsports, Inc. v. K-VA-T Food Stores, Inc., 975 F. Supp. 2d 993, 998 (E.D. Mo. 2013) (citations omitted), and this motion raises due process issues, the entirety of the Court’s personal jurisdiction analysis should be performed under Third Circuit law, see In re Bard IVC Filters Prods. Liab. Litig., No. 15-2641, 2016 U.S. Dist. LEXIS 149786, at *314-15 (D. Ariz. Oct. 27, 2016) (“[W]hether in federal court or Missouri courts, the question of personal jurisdiction turns on well- known principles of due process law.”). Once a defendant has moved for dismissal based on the lack of personal jurisdiction, “the plaintiff bears the burden of proving that personal jurisdiction is proper.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998). When a determination of jurisdiction is based on the submission of written materials instead of an evidentiary hearing, a plaintiff “need[] only . . . establish a prima Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 15 of 31 PageID: 1612 8 facie case of personal jurisdiction.” Stampone v. Fopma, 567 F. App’x 69, 70 (3d Cir. 2014) (per curiam) (citation omitted); see also Choi v. Damul Corp., No. 12- 2440 (JLL), 2014 WL 314669, at *3 (D.N.J. Jan. 27, 014) (“If no evidentiary hearing takes place a plaintiff need only offer a prima facie case for personal jurisdiction.”). However, the plaintiff’s prima facie case may be overcome by “uncontested evidence that demonstrates the Court cannot, based upon the evidence before it, exercise personal jurisdiction over Defendants.” Choi, 2014 WL 314669, at *3. The Court must accept as true facts presented in a defendant’s uncontested affidavits. See, e.g., Ware v. Ball Plastic Container Corp., 432 F. Supp. 2d 434, 435-36 (D. Del. 2006) (“[T]he averments of fact in the [defendants’] affidavit shall be accepted as true . . . unless plaintiff files a counter-affidavit.”); Peek v. Golden Nugget Hotel & Casino, 806 F. Supp. 555, 558 (E.D. Pa. 1992) (holding plaintiffs did not satisfy burden of proving personal jurisdiction where “defendants themselves, in affidavits . . . [,] provided the only competent evidence . . . relating to the defendants’ contacts with [the forum state]”). The Due Process Clause of the U.S. Constitution “requi s that nonresident defendants have ‘certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional otions of fair play and substantial justice.’” Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (quoting Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 16 of 31 PageID: 1613 9 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Under due process requirements, “[t]here are two distinct theories under which personal jurisdiction can arise: general and specific.” Allaham v. Naddaf, 635 F. App’x 32, 37-38 (3d Cir. 2015). For the reasons set forth below, both general and specific jurisdiction are lacking over the Johnson & Johnson defendants with respect to the 76 plaintiffs whose claims have no connection to Missouri. Accordingly, those 76 plaintiffs’ claims should be dismissed in their entirety. I. GENERAL JURISDICTION IS LACKING BECAUSE THE JOHNSON & JOHNSON DEFENDANTS’ CONTACTS WITH MISSOURI ARE INSUFFICIENT TO RENDER THEM ESSENTIALLY “AT HOME” THERE. Defendants are not subject to general jurisdiction in Missouri because they are not Missouri companies, are not headquartered in Missouri and do not have contacts with Missouri that are so continuous and systematic that it would be fair to treat them as though they were based there. “[A] court may assert [general] jurisdiction over a foreign corporation ‘to hear any and all claims against [it]’ only when the corporation’s affiliations with the State in which suit is brought are so constant and pervasive ‘as to render [it] essentially at home in the forum State.’” Daimler, 134 S. Ct. at 751 (emphasis added) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)); see also Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 277-78 (4th Cir. 2009) (explaining that to exercise general jurisdiction consistent Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 17 of 31 PageID: 1614 10 with due process, “the defendant’s contacts with the forum state must have been so substantial that ‘they amount to a surrogate for presence and thus render the exercise of sovereignty just’”) (citation omitted). As the Supreme Court recently elaborated in BNSF, the Daimler framework means that “in-state business . . . does not suffice to permit the assertion of general jurisdiction.” 2017 WL 2322834, at *10 (emphasis added). See also, e.g., Gray v. Apple Inc., No. 13-cv-7798 (KM) (MAH), 2016 WL 4149977, at *3-4 (D.N.J. Aug. 3, 2016) (citation omitted) (explaining that “it is not sufficient that corporate defendants be engaged in a ‘substantial, continuous, and systematic course of business’ in the forum state” to create general jurisdiction); Farber v. Tennant Truck Lines, Inc., 84 F. Supp. 3d 421, 432 (E.D. Pa. 2015) (“[Goodyear and Daimler] make clear that even a company’s ‘engagement in a substantial, continuous, and systematic course of business’ is alone insufficient to render it at home in a forum.”) (citations omitted); Fuentes v. Mehra, No. 14-8118 (RBK/KMW), 2015 WL 3754705, at *4 n.4 (D.N.J. June 15, 2015) (“Daimler held that in the context of general jurisdiction, it is not enough that a corporation engage in ‘substantial, continuous, and systematic’ business in a state.”) (citation omitted); Krishanti v. Rajaratnam, No. 2:09-cv- 05395 (JLL)(JAD), 2014 WL 1669873, at *7 (D.N.J. Apr. 28, 2014) (“As the Supreme Court stated in Daimler, the exercise of general jurisdiction simply based on a corporation’s ‘substantial, continuous, and systematic course of business’ Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 18 of 31 PageID: 1615 11 within a state is an ‘unacceptably grasping’ formulation.”) (citation omitted). Rather, “[o]nly in the ‘exceptional case’ will substantial, continuous, and systematic contacts, such that the defendant is ‘essentially at home in the forum State,’ form the basis for general jurisdiction.” Spear v. Marriott Hotel Servs., Inc., No. 15-6447, 2016 WL 194071, at *2-3 (E.D. Pa. Jan. 15, 2016) (emphasis added) (quoting Daimler, 134 S. Ct. at 760-61) (holding that “[a]pplying the considerations of Daimler and Goodyear, the mere allegation that defendants operate in the [forum] State does not render defendants ‘at home’ in [the forum State] and subject [them] to general jurisdiction”).3 3 Courts across the country have likewise emphasized that Daimler significantly elevated the showing needed to subject a company to general jurisdiction outside its home state. See, e.g., Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 698 (7th Cir. 2015) (emphasizing that Daimler “raised the bar” for general jurisdiction, which now requires even “more than the ‘substantial, continuous, and systematic course of business’ that was once thought to suffice” and warning that “[b]ecause general jurisdiction exists even with respect to conduct entirely unrelated to the forum state . . .it should not lightly be found”) (citation omitted); Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 223 (2d Cir. 2014) (per curiam) (stating that the Daimler opinion “reaffirms that general jurisdiction extends beyond an entity’s state of incorporation and principal place of business only in the exceptional case where its contacts with another forum are so substantial as to render it ‘at home’ in that state”); Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (dismissing claims against nonresident corporation for lack of personal jurisdiction and emphasizing that a “‘corporation that operates in many places can scarcely be deemed at home in all of them’”) (citation omitted), cert. denied, 135 S. Ct. 2310 (2015); Gen. Elec. Co. v. Univ. of Va. Patent Found., No. 14-C-1529, 2015 WL 1246087, at *4 (E.D. Wis. Mar. 18, 2015) (stating that “[g]eneral jurisdiction applies only when the affiliations of a foreign corporation are so ‘continuous and systematic’ as to (cont’d) Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 19 of 31 PageID: 1616 12 General jurisdiction is clearly lacking under this standard because the Johnson & Johnson defendants are not Missouri corporations and do not maintain their principal places of business in Missouri. (FAP ¶¶ 81, 83; Elberg Aff. ¶ 2; Son Aff. ¶ 2.) Plaintiffs must therefore allege that the Johnson & Johnson defendants engaged in more than a “substantial, continuous, and systematic course of business” in Missouri in order to support general jurisdiction. See, e.g., Gray, 2016 WL 4149977, at *3 (citation omitted). Plaintiffs fail to do so. Instead, they advance boilerplate jurisdictional allegations to the effect that the Johnson & Johnson defendants did business in Missouri. (See FAP ¶¶ 82, 84 (alleging that the Johnson & Johnson defendants “regularly transacted, solicited, and conducted business in all States of the United States, including the State of Missouri”); id. ¶ 88 (alleging that the Johnson & Johnson defendants “introduced [their] products into interstate commerce with knowledge and intent that such products be sold in . . . Missouri”).) But the Supreme Court has expressly rejected the notion that “in-state business” ________________________ (cont’d from previous page) ‘render [it] essentially at home in the forum State,’” and dismissing case against non-resident defendant for lack of personal jurisdiction because the corporation was not “at home” in Wisconsin) (citation omitted); Hill v. Capital One Bank (USA), N.A., No. 14-cv-6236, 2015 WL 468878, at *6 (N.D. Ill. Feb. 3, 2015) (stating, in accord with Daimler, that “general jurisdiction analysis should focus on a corporation’s true locus of corporate activity”); State ex rel. Norfolk S. Ry. Co. v. Dolan, No. SC95514, 2017 WL 770977, at *3 (Mo. Feb. 28, 017) (while “continuous and systematic” business in Missouri might have sufficed to establish general personal jurisdiction at one time, “it is no longer the law” in light of Daimler). Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 20 of 31 PageID: 1617 13 suffices to establish general jurisdiction, BNSF, 2017 WL 2322834, at *10, and courts have repeatedly rejected allegations like those here as sufficient, see Daimler, 134 S. Ct. at 751; Spear, 2016 WL 194071, at *2-3; see also, e.g., McCourt v. A.O. Smith Water Prods. Co., No. 14-221, 2015 WL 4997403, at *4 (D.N.J. Aug. 20, 2015) (“The single fact that Defenda t registered to do business in New Jersey is insufficient to conclude that it ‘consented’ to jurisdiction here.”).4 Indeed, Third Circuit courts have rejected general jurisdiction where the 4 See also, e.g., Addelson v. Sanofi S.A., No. 4:16CV01277 ERW, 2016 WL 6216124, at *3 (E.D. Mo. Oct. 25, 2016) (“Plaintiffs’ allegations simply state Defendants distributed, marketed, promoted, and solTaxotere in St. Louis and Missouri. This is not enough to establish general jurisdiction as outlined in Daimler.”); Keeley v. Pfizer Inc., No. 4:15CV00583 ERW, 2015 WL 3999488, at *2-4 (E.D. Mo. June 1, 2015) (holding that Missouri court lacked general jurisdiction over Pfizer because “[s]imply marketing and selling a product in a state” does not render a corporate defendant “at home” in that state); Guillette v. PD-RX Pharm. Inc., No. 5:15-cv-00564-R, 2016 WL 3094073, at *6 (W.D. Okla. June 1, 2016) (allegations that the defendant “‘manuf ctured and marketed pharmaceutical products,’ ‘conducted extensive commercial activity within Oklahoma for years,’ and ‘transacted business’ in Oklahoma” insufficient for general jurisdiction) (footnote omitted) (citations omitted); Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381, 388-89 (E.D.N.Y. 2015) (holding that New York court lacked general jurisdiction over Wendy’s because the “notion that Wendy’s can be considered ‘at home’ in every forum in which it operat s restaurants was specifically rejected in Daimler”); Locke v. Ethicon Inc., 58 F. Supp. 3d 757, 763- 64 (S.D. Tex. 2014) (holding, in accord with Daimler, that revenue from corporation’s product sales in Texas did not render corporation subject to general jurisdiction in Texas); Dolan, 2017 WL 770977, at *5 (general personal jurisdiction was lacking over Virginia corporation with respect to injuries sustained by Indiana resident in Indiana because defendant’s “activities in Missouri are only a very small part of its overall activities, and not of the nature that makes Missouri its de facto principal place of business,” as required under Daimler) (emphasis added). Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 21 of 31 PageID: 1618 14 allegations of forum state activity were far more robust than they are here. See, e.g., Gray, 2016 WL 4149977, at *3-4 (New Jersey lacked general jurisdiction over foreign defendant corporation under Daimler where defendant owned and operated twelve stores in New Jersey, shipped its products to New Jersey and generated $182.8 billion in sales to New Jersey customers); Farber, 84 F. Supp. 3d at 430-34 (Pennsylvania lacked general jurisdiction ver foreign shipping corporation that had completed more than 4,600 deliveries in Pennsylvania between 2010 and 2014, maintained employees in Pennsylva ia and earned substantial yearly revenue from Pennsylvania busines activities). Accordingly, the Johnson & Johnson defendants are not subject to general jurisdiction in Missouri. II. SPECIFIC JURISDICTION IS LACKING FOR THE 76 PLAINTI FFS WHOSE CLAIMS HAVE NO CONNECTION TO MISSOURI. The Johnson & Johnson defendants are also not subject to specific jurisdiction in Missouri with respect to the claims a serted by the 76 plaintiffs who do not allege that they or their decedents purchased, used or were injured by using defendants’ products containing talcum powder in Missouri. These plaintiffs’ claims do not arise out of the Johnson & Johnson defen ants’ activities in Missouri because they do not allege any meaningful connection to the state. Nor can these plaintiffs establish personal jurisdiction by aligning with the three plaintiffs who Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 22 of 31 PageID: 1619 15 assert a connection to Missouri. Rather, the Supreme Court recently held that such an approach violates basic principles of due process. Specific jurisdiction can only be exercised consistent with due process where the defendant’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 (emphases added) (quoting Int’l Shoe Co., 326 U.S. at 317); see also Allaham, 635 F. App’x at 39 (“[T]he plaintiff must establish that the defendant ‘purposefully directed . . . or otherwise purposefully avail[ed] itself of the privilege of conducting activities within the forum State.’”) (quoting IMO Indus., Inc., 155 F.3d at 259). Because a defendant’s contacts with a forum state are not all relevant to determining whether a plaintiff’s claims relate to a defendant’s contacts, “there must be . . . ‘deliberate contact’ with the forum state that relates to the cause of action.” Smith v. S&S Dundalk Eng’g Works, Ltd., 139 F. Supp. 2d 610, 618 (D.N.J. 2001) (emphasis added) (citation omitted); see also Stinnett v. Atl. City Showboat, Inc., No. 07-4743, 2008 WL 1924125, at *6 (E.D. Pa. Apr. 29, 2008) (no specific jurisdiction where “plaintiff . . . presented no evidence that defendant ‘deliberately target[ed]’ this state” and “even if defendant specifically targeted [the forum state] . . . , plaintiff’s claim d[id] not ‘arise out of or relate to’ that contact with the forum”) (citation omitted). Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 23 of 31 PageID: 1620 16 In accordance with these principles, courts in the Third Circuit have routinely rejected personal jurisdiction over defenda ts in lawsuits brought by plaintiffs in states that have no connection to their injuries, notwithstanding the fact that the defendant is alleged to have a nationwide business that includes substantial sales in the forum state. See, e.g., Campbell v. Mars, Inc., No. 16-4035, 2016 U.S. Dist. LEXIS 161996, at *5-7 (E.D. Pa. Nov. 22, 2016) (no specific jurisdiction where foreign defendant corporation sold a “plethora f products” in Pennsylvania, but where the litigation arose from purchases of defendant’s products in other states); Patry’s Pearah v. Intercontinental Hotel Grp. PLC, No. 2:15-cv-07354 (WJM), 2016 U.S. Dist. LEXIS 84300, at *1, *10 (D.N.J. June 29, 2016) (no specific jurisdiction over Illinois-based global travel agency for alleged assault in Amman, Jordan because plaintiff’s cause of action had “no relationship to New Jersey at all”); Gray, 2016 WL 4149977, at *3-4 (declining to exercise personal jurisdiction where defendant generated $182.8 billion n sales to New Jersey customers, but where the “allegedly wrongful act took place in [California]”). Courts across the country – including several MDL courts considering actions initially filed in Missouri state court – have taken the same approach. For example, in In re Testosterone Replacement Therapy Products Liability Litigation Coordinated Pretrial Proceedings, the MDL court held that sales and marketing of the defendants’ testosterone replacement therapy drug AndroGel in Missouri did Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 24 of 31 PageID: 1621 17 not give rise to non-Missouri plaintiffs’ claims because there were no allegations that those plaintiffs used or were injured from using AndroGel in Missouri. 164 F. Supp. 3d 1040, 1047-49 (N.D. Ill. 2016), reconsidered in part on other grounds, No. 14 C 1748, 2016 WL 861213 (N.D. Ill. Mar. 7, 2016). As the court explained: Just as defendants allegedly sold and made false repr s ntations about AndroGel in Missouri, giving rise to injuries there, so too did defendants allegedly sell and make false representatio s about AndroGel in Illinois and other states. But plaintiffs make no allegation of any real relationship between [the out-of-state plaintiff’s] claims and defendants’ Missouri contacts; all of the factual allegations necessary to establish his claims are based on defendants’ conduct outside Missouri. Id. at 1048 (emphases added). The court accordingly held that Missouri lacked jurisdiction over the only plaintiff whose inclusion in the suit defeated diversity, dismissed his claim and denied the plaintiffs’ motion to remand. Id. at 1049-50. Similarly, in Zofran, the plaintiffs, only one of whom was a Missouri cit zen, brought suit in Missouri state court against GlaxoSmithKline (“GSK”), a Delaware corporation. 2016 WL 2349105, at *1. After the suit was removed to the Eastern District of Missouri on diversity grounds, it was transferred to an MDL proceeding in the District of Massachusetts. Id. In denying the plaintiffs’ motion to remand, the MDL court decided personal jurisdiction before assessing its subject matter jurisdiction and held that Missouri lacked specific jurisdiction over GSK as to the non-Missouri plaintiffs because none of them allegedly were prescribed, used or were injured from taking Zofran in Missouri. Id. at *5. The court accordingly Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 25 of 31 PageID: 1622 18 dismissed the non-Missouri plaintiffs’ claims for lack of personal jurisdiction (and denied the motion to remand because the dismissal cre ted complete diversity). Id.; see also, e.g., Bard IVC Filters, 2016 U.S. Dist. LEXIS 149786, at *316 (dismissing non-Missouri plaintiffs who were joined in Missouri state court action that was removed and transferred to MDL proceeding because “[t]he out-of-state Plaintiffs present no facts to suggest that their alleged injuries from Bard IVC filters arise out of or relate to Defendants’ actions in Missouri[,] [n]o out-of-state Plaintiff is a citizen of Missouri, and no event giving rise to their claims took place there”; denying motion to remand because this dismis al created complete diversity with remaining plaintiffs).5 5 See also, e.g., Addelson, 2016 WL 6216124, at *4 (finding that the defendants were not subject to general jurisdiction in Missouri under Daimler and were not subject to specific jurisdiction because th plaintiffs failed to allege any facts connecting non-Missouri plaintiff to defendants’ Missouri contacts); Keeley, 2015 WL 3999488, at *2-4 (holding that Missouri court lacked specific jurisdiction over Pfizer as to claims brought by Georgia plaintiff when there were “no facts suggesting Plaintiff was prescribed the medication in Missouri, purchased the medication in Missouri, saw the advertisements in Missouri, or in any way was injured in Missouri”); Beard v. Smithkline Beecham Corp., No. 4:15-CV-1833 RLW, 2016 WL 1746113, at *2 (E.D. Mo. May 3, 2016) (in multi-plaintiff personal injury case, holding that Missouri courts lacked personal jurisdiction over defendants as to the claims of the non-Missouri plaintiffs because “Plaintiffs have not alleged any connection between Missouri and their injuries”); Neeley v. Wolters Kluwer Health, Inc., No. 4:11-CV-325 JAR, 2013 WL 3929059, at *4 (E.D. Mo. July 29, 2013) (holding that Missouri courts lacked specific jurisdiction over generic drug manufacturer for claims brought by Kentucky plaintiffs because such claims were “entirely unrelated to” manufacturer’s “activities in Missouri” and that Kentucky plaintiffs’ “cause of action ‘arises out of’ and ‘relates to’ (cont’d) Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 26 of 31 PageID: 1623 19 The same principles require dismissal of the claims of the 76 plaintiffs whose claims have no connection to Missouri because these plaintiffs do not allege that they or their decedents purchased or used defen ants’ products containing talcum powder in Missouri, or were injured by them there. (See FAP ¶¶ 3-55, 57- 63, 65-80.) In short, there is not a single allegation in the First Amended Petition that even attempts to tie the claims of these plaintiffs to anything that any defendant has allegedly done in Missouri. Consequently, these plaintiffs’ claims do not arise out of the Johnson & Johnson defendants’ contacts with Missouri, and there is no specific jurisdiction. ________________________ (cont’d from previous page) activities in the State of Kentucky”) (emphasis adde ); Denton v. Air & Liquid Sys. Corps., No. 13-cv-1243-SMY-DGW, 2015 WL 738659, at *1 (S.D. Ill. Feb. 19, 2015) (no specific jurisdiction in Illinois where plaintiff was allegedly exposed to asbestos at the defendant’s facility in Texas because the “alleged injuries do not arise out of or relate to Valero’s contacts with Illinois”); Adkins v. Nestle Purina PetCare Co., 973 F. Supp. 2d 905, 913 (N.D. Ill. 2013) (“Because plaintiffs concede that their claims against BJ’s do not arise f om any business conducted in Illinois, BJ’s cannot be subject to specific jurisdiction.”); Guillette, 2016 WL 3094073, at *5 (no specific jurisdiction because all ged injuries “occurred outside of Oklahoma and arose out of Defendants’ marketing a d sales of propoxyphene- containing products outside of Oklahoma” and there was “no evidence [that] the products were ingested in Oklahoma nor any argument to draw any connection between their out-of-state injuries” and the defendant’s in-state activities); Dolan, 2017 WL 770977, at *6 (exercising specific personal jurisdiction over a company because it “is a national company that does the same ‘type’ of business in the forum state as in the rest of the country” “would . . . turn specific jurisdiction on its head”). Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 27 of 31 PageID: 1624 20 Nor does the non-Missouri plaintiffs’ joinder with Missouri plaintiffs suffice to manufacture personal jurisdiction. Rather, Bristol-Myers confirmed that specific jurisdiction is lacking over defendants with respect to claims asserted by plaintiffs whose claims have no connection to the forum where an action is commenced, regardless of whether those plaintiffs join their claims with plaintiffs whose claims have some connection with the forum. In Bristol-Myers, more than 600 plaintiffs, most of whom were not California residents, sued Bristol-Myers (“BMS”) in state court. BMS moved to dismiss the nonresidents’ claims on the ground that the court lacked personal jurisdiction. On appeal, theCalifornia Supreme Court concluded that the trial court did have specific personal jurisdiction over the claims, concluding that “BMS’s extensive contacts with California,” combined with the fact that the “claims of the nonresidents were similar in several ways to the claims of the California residents” as to “permi[t] the exercise of specific jurisdiction.” 2017 WL 2621322, at *5 (citation omitted). The U.S. Supreme Court reversed, rejecting the California Supreme Court’s approach as “resembl[ing] a loose and spurious form f general jurisdiction.” Id. at *8. It further criticized the holding for failing to “identify[] any adequate link between the State and the nonresidents’ claims.” Id. As the Court explained, the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. The mere fact that other plaintiffs were Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 28 of 31 PageID: 1625 21 prescribed, obtained, and ingested Plavix in Californ a— and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims. . . . This remains true even when third parties (here, the plaintiffs who reside in California) can bring claims similar to those brought by the nonresidents. . . . What is needed— and what is missing here—is a connection between th forum and the specific claims at issue. Id. Only one Justice – Justice Sotomayor – dissented. In so doing, she expressly emphasized the issue of joinder, contending that “[n]othing in the Due Process Clause prohibits a California court from hearing respondents’ claims—at least not in a case where they are joined to identical claims brought by California residents.” Id. at *15 (Sotomayor, J., dissenting). And she expressed concern that the ruling would “have consequences far beyond this case” because “the upshot of today’s opinion is that plaintiffs cannot join their claims together and sue a defendant in a State in which only some of them have been injured.” Id. at *17. The majority rejected these concerns. As it explained, its decision did not erect an insuperable barrier to joint actions by residents from different states “in the States that have general jurisdiction over BMS” – i.e., New York or Delaware. Id. at *3. But what they could not do is join together to sue BMS in some other state based solely on the fact that one or more of the plaintiffs resided or was injured there. See also, e.g., In re Testosterone Replacement Therapy, 164 F. Supp. 3d at 1049 (it Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 29 of 31 PageID: 1626 22 would “be unfair and contrary to the rationale underlying the minimum contacts doctrine to allow plaintiffs to use the Missouri plaintiff’s claims as a hook to reel defendants into a series of separate trials in a dist nt and inconvenient forum to try issues unrelated to their conduct within the forum”); In re Bard IVC Filters, 2016 U.S. Dist. LEXIS 149768, at *317-18 (a plaintiff whose “cause of action does not arise out of or relate to the defendant’s actions within the forum State . . . cannot establish specific personal jurisdiction over the defendant,” “even if the plaintiff is joined with other plaintiffs whose claims do arise out of the defendant’s forum contacts.”) (emphasis added). This case calls for the same result. Under the reasoning of Bristol-Myers, personal jurisdiction over the J&J defendants is lacking with respect to the 76 plaintiffs whose claims have no connection to Missouri, and the mere fact that they joined their claims with those of three plaintiffs who may satisfy personal jurisdiction requirements does not alter that conclusion. Accordingly, the Court should reject plaintiffs’ efforts to manufacture personal jurisdiction by joining their claims with those of other plaintiffs for whom jurisdiction may be proper.6 6 Venue is also improper in the Eastern District of Missouri as to the 76 plaintiffs because it is no defendant’s home district and it is not “a judicial district in which a substantial part of the events or omission giving rise to” these plaintiffs’ claims occurred. See 28 U.S.C. § 1391(b). The Johnson & Johnson defendants likewise do not concede that venue is proper in the Eastern District of Missouri as to the other plaintiffs’ claims. Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 30 of 31 PageID: 1627 23 CONCLUSION For the foregoing reasons, the Johnson & Johnson defen ants respectfully request that the Court dismiss the claims of the 76 plaintiffs who do not allege any connection between their claims and the State of Missouri for lack of personal jurisdiction. Dated: July 3, 2017 s/Susan M. Sharko Susan M. Sharko DRINKER BIDDLE & REATH LLP 600 Campus Drive Florham Park, New Jersey 07932 Telephone: 973-549-7000 Facsimile: 973-360-9831 E-mail: susan.sharko@dbr.com Gene M. Williams SHOOK, HARDY & BACON L.L.P. JPMorgan Chase Tower 600 Travis St., Suite 3400 Houston, TX 77002 Telephone: 713-227-8008 Facsimile: 713-227-9508 E-mail: gmwilliams@shb.com John H. Beisner SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 Telephone: 202-371-7000 Facsimile: 202-661-8301 E-mail: john.beisner@skadden.com Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc., now known as Johnson & Johnson Consumer Inc. Case 3:17-cv-03945-FLW-LHG Document 43-1 Filed 07/03/17 Page 31 of 31 PageID: 1628 Case 3:17-cv-03945-FLW-LHG Document 43-2 Filed 07/03/17 Page 1 of 2 PageID: 1629 Case 3:17-cv-03945-FLW-LHG Document 43-2 Filed 07/03/17 Page 2 of 2 PageID: 1630 EXHIBIT 1 Case 3:17-cv-03945-FLW-LHG Document 43-3 Filed 07/03/17 Page 1 of 4 PageID: 1631 EXHIBIT 1 1. Frank Alberding 2. Dynnia Anderson 3. Wanda Bates, individually and as Representative of the Estate of Susan Ross, deceased 4. Gail Biggs 5. David Blease, individually and as Representative of the Estate of Tierney Blease, deceased 6. James Brown, individually and as Personal Representative of the Estate of Angela Brown, deceased 7. Arlis Burke 8. Lidia Lizbeth Carbajal 9. Donna Cardwell 10. Linda Carroll 11. Arlita Carter 12. Rita Ceballos 13. Kynda Cook 14. Laurie DeStefano 15. Juel Donovan 16. LuAnn Edwards 17. Glenn Everlith Sr., individually and as Representative of the Estate of Linda Everlith, deceased 18. Marlene Friend 19. Carie Gaytan 20. Lorraine Goldstein 21. Tammie Gothard 22. Julie Graham 23. Christine Grimm 24. Jacklyn Hall 25. Greta Karen Hamm, individually and as Personal Representative of the Estate of Cindy Willis, deceased 26. Deborah Herndon 27. Jeanne Heroux 28. Mary Honea 29. Andrea Hoshko-Smith 30. Patricia Kimmell 31. Marlene Koutoujian 32. Susan Lawrence 33. Delbert Leath, individually and as Heir of the Estate of Karen Leath, deceased 34. Cheryl Lyons Case 3:17-cv-03945-FLW-LHG Document 43-3 Filed 07/03/17 Page 2 of 4 PageID: 1632 EXHIBIT 1 2 35. Rachel Martin 36. Erika Matulich 37. Kathryn Mauer 38. Donna Maxey 39. Rosa Marie Mendoza 40. Dianna Metzler 41. Diane Miller 42. Cindy Morgan 43. Sherry Murphy, individually and as Representative of the Estate of Shelley Murphy, deceased 44. Donald Nemecek, individually and as Executor of the Estate of Gail Nemecek, deceased 45. Rebecca Norton 46. Elisabeth Paolillo 47. Brenda Parks 48. James Pendergast, Jr., individually and as Representative of the Estate of Brenda Pendergast, deceased 49. Donna Petrosky 50. Carmen Pinheiro 51. Jannae Posey 52. Felipe Price, individually and as Representative of the Estate of Inez Price, deceased 53. Melissa Register 54. Alicia Riggs 55. Donna Roberts 56. Patricia Seago 57. Renee Silva 58. Deborah Spence 59. Barbara Story 60. Anita Stowers 61. Patricia Vaccaro 62. Stephanie Vai 63. Sandra Warren 64. Gary Webster, individually and as Representative of the Estate of Diane Webster, deceased 65. Sandra West 66. Shelli Ann Wheeler 67. Cynthia White 68. Mary Williams Case 3:17-cv-03945-FLW-LHG Document 43-3 Filed 07/03/17 Page 3 of 4 PageID: 1633 EXHIBIT 1 3 69. Louielene Williams, individually and as Representative of the Estate of Charvette Williams, deceased 70. Sheila Winfield 71. Debra Woodside, individually and as Representative of the Estate of Donna Epperly, deceased 72. Marilu Zambrano 73. Veronica Michelle Moore, individually and as Representative of the Estate of Veronica Moore, deceased 74. Steven Terner, as Personal Representative of the Estate of Ellen Shapiro Terner 75. Willis Maruna, individually and as Representative of the Estate of Janet Maruna, deceased 76. Nestor Taboas, individually and as Representative of the Estate of Gladys Pabon, deceased Case 3:17-cv-03945-FLW-LHG Document 43-3 Filed 07/03/17 Page 4 of 4 PageID: 1634 EXHIBIT 2 Case 3:17-cv-03945-FLW-LHG Document 43-4 Filed 07/03/17 Page 1 of 2 PageID: 1635 Case 3:17-cv-03945-FLW-LHG Document 43-4 Filed 07/03/17 Page 2 of 2 PageID: 1636 EXHIBIT 3 Case 3:17-cv-03945-FLW-LHG Document 43-5 Filed 07/03/17 Page 1 of 2 PageID: 1637 Case 3:17-cv-03945-FLW-LHG Document 43-5 Filed 07/03/17 Page 2 of 2 PageID: 1638 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ___________________________________ ) JEAN KRUEGER, et al., ) Civil A. No. 3:17-cv-03945- ) (FLW) (LHG) Plaintiffs, ) ) [PROPOSED] ORDER ) GRANTING DEFENDANTS v. ) JOHNSON & JOHNSON ) AND JOHNSON & JOHNSON & JOHNSON, et al., ) JOHNSON CONSUMER ) INC.’S MOTION TO Defendants ) DISMISS ___________________________________ ) THIS MATTER having been brought before the Court on motion by Defendants Johnson & Johnson (incorrectly sued as Johnson & Johnson Inc.) and Johnson & Johnson Consumer Inc., f/k/a Johnson & Johns n Consumer Companies, Inc. (collectively, the “Johnson & Johnson Defendants”) for an Order granting Defendants’ Motion To Dismiss 76 Plaintiffs’ Claims For Lack of Personal Jurisdiction, and the Court having considered the moving papers and any opposition thereto; and having considered the arguments of counsel, and for good cause shown: IT IS on this __________ day of ___________, 2017, ORDERED that the Johnson & Johnson Defendants’ Motion To Dismiss 76 Plaintiffs’ Claims for Lack of Personal Jurisdiction is hereby GRANTED . Case 3:17-cv-03945-FLW-LHG Document 43-6 Filed 07/03/17 Page 1 of 5 PageID: 1639 2 Accordingly, all claims against the Johnson & Johnson Defendants brought by Plaintiffs on the attached Exhibit A be and hereby are DISMISSED. ____________________________ Hon. Freda L. Wolfson Case 3:17-cv-03945-FLW-LHG Document 43-6 Filed 07/03/17 Page 2 of 5 PageID: 1640 3 EXHIBIT A 1. Frank Alberding 2. Dynnia Anderson 3. Wanda Bates, individually and as Representative of the Estate of Susan Ross, deceased 4. Gail Biggs 5. David Blease, individually and as Representative of the Estate of Tierney Blease, deceased 6. James Brown, individually and as Personal Representative of the Estate of Angela Brown, deceased 7. Arlis Burke 8. Lidia Lizbeth Carbajal 9. Donna Cardwell 10. Linda Carroll 11. Arlita Carter 12. Rita Ceballos 13. Kynda Cook 14. Laurie DeStefano 15. Juel Donovan 16. LuAnn Edwards 17. Glenn Everlith Sr., individually and as Representative of the Estate of Linda Everlith, deceased 18. Marlene Friend 19. Carie Gaytan 20. Lorraine Goldstein 21. Tammie Gothard 22. Julie Graham 23. Christine Grimm 24. Jacklyn Hall 25. Greta Karen Hamm, individually and as Personal Representative of the Estate of Cindy Willis, deceased 26. Deborah Herndon 27. Jeanne Heroux 28. Mary Honea 29. Andrea Hoshko-Smith 30. Patricia Kimmell Case 3:17-cv-03945-FLW-LHG Document 43-6 Filed 07/03/17 Page 3 of 5 PageID: 1641 4 EXHIBIT A 31. Marlene Koutoujian 32. Susan Lawrence 33. Delbert Leath, individually and as Heir of the Estate of Karen Leath, deceased 34. Cheryl Lyons 35. Rachel Martin 36. Erika Matulich 37. Kathryn Mauer 38. Donna Maxey 39. Rosa Marie Mendoza 40. Dianna Metzler 41. Diane Miller 42. Cindy Morgan 43. Sherry Murphy, individually and as Representative of the Estate of Shelley Murphy, deceased 44. Donald Nemecek, individually and as Executor of the Estate of Gail Nemecek, deceased 45. Rebecca Norton 46. Elisabeth Paolillo 47. Brenda Parks 48. James Pendergast, Jr., individually and as Representative of the Estate of Brenda Pendergast, deceased 49. Donna Petrosky 50. Carmen Pinheiro 51. Jannae Posey 52. Felipe Price, individually and as Representative of the Estate of Inez Price, deceased 53. Melissa Register 54. Alicia Riggs 55. Donna Roberts 56. Patricia Seago 57. Renee Silva 58. Deborah Spence 59. Barbara Story Case 3:17-cv-03945-FLW-LHG Document 43-6 Filed 07/03/17 Page 4 of 5 PageID: 1642 5 EXHIBIT A 60. Anita Stowers 61. Patricia Vaccaro 62. Stephanie Vai 63. Sandra Warren 64. Gary Webster, individually and as Representative of the Estate of Diane Webster, deceased 65. Sandra West 66. Shelli Ann Wheeler 67. Cynthia White 68. Mary Williams 69. Louielene Williams, individually and as Representative of the Estate of Charvette Williams, deceased 70. Sheila Winfield 71. Debra Woodside, individually and as Representative of the Estate of Donna Epperly, deceased 72. Marilu Zambrano 73. Veronica Michelle Moore, individually and as Representative of the Estate of Veronica Moore, deceased 74. Steven Terner, as Personal Representative of the Estate of Ellen Shapiro Terner 75. Willis Maruna, individually and as Representative of the Estate of Janet Maruna, deceased 76. Nestor Taboas, individually and as Representative of the Estate of Gladys Pabon, deceased Case 3:17-cv-03945-FLW-LHG Document 43-6 Filed 07/03/17 Page 5 of 5 PageID: 1643 Case 3:17-cv-03945-FLW-LHG Document 43-7 Filed 07/03/17 Page 1 of 1 PageID: 1644