Tissair v. Pfizer Inc. et al

MOTION to Dismiss for Lack of Jurisdiction

N.D. Cal.October 21, 2016

Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey M. Davidson (Bar No. 248620) COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, California 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Email: jdavidson@cov.com Attorney for Defendant Eli Lilly and Company UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION WILLIAM TISSAIR, Plaintiff, v. PFIZER, INC. and ELI LILLY AND COMPANY, Defendants. Civil Case No.: 3:16-cv-05265-RS DEFENDANT ELI LILLY AND COMPANY’S NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: December 14, 2016 Time: 2:30 p.m. Place: Courtroom 3 - 17th Floor Judge: Honorable Richard Seeborg Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 1 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT, on December 14, 2016 at 2:30 p.m., or as soon thereafter as the matter may be heard,1 in the Courtroom of the Honorable Richard G. Seeborg, United States District Judge for the Northern District of California, Courtroom 3, 17th Floor, 450 Golden Gate Avenue, San Francisco, California 94102, Defendant Eli Lilly and Company (“Lilly”) will, and hereby does, move this Court pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, to dismiss Plaintiff’s Complaint. Lilly brings this Motion on the ground that the Court lacks personal jurisdiction over Plaintiff. This Motion is based on the Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the papers and records on file in this action, and such other written and oral argument as may be presented to the Court. DATED: October 21, 2016 COVINGTON & BURLING LLP By: /s/ Jeffrey M. Davidson Jeffrey M. Davidson (Bar No. 248620) Attorney for Defendant ELI LILLY AND COMPANY 1 Lilly has suggested this date, which is not the Court’s usual day for civil motions, because the Court has previously set on that date a Case Management Conference for other Cialis® cases in which Lilly’s motion for personal jurisdiction is pending. See Minute Entry, Scott v. Pfizer, Inc. et al., 3:16-cv-03669- RS, dkt. 25 (N.D. Cal. Oct. 14, 2016). Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 2 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS NOTICE OF MOTION AND MOTION TO DISMISS ................................................................. ii MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 I. BACKGROUND ................................................................................................................ 1 II. ARGUMENT ...................................................................................................................... 2 A. Applicable Jurisdictional Framework ..................................................................... 2 B. Plaintiff Cannot Establish General Jurisdiction Over Lilly. ................................... 2 1. A Corporation is Subject to General Jurisdiction Only Where It is “at Home.” ........................................................................................................ 2 2. Lilly is Not at Home in California. ............................................................. 4 3. Post-Daimler Authority in California’s Federal Courts Militates Against General Jurisdiction. ................................................................................... 5 4. Post-Daimler Pharmaceutical Authority Militates Against General Jurisdiction. ................................................................................................. 7 C. Plaintiff Cannot Establish Specific Jurisdiction Over Lilly. ................................... 8 1. Specific Jurisdiction Hinges on Relatedness. ............................................. 8 2. Plaintiff is a Citizen of Ohio ....................................................................... 9 3. Plaintiff’s Claims Do Not Relate to Lilly’s California Contacts. ............... 9 4. Exercising Specific Jurisdiction Over Lilly is Unreasonable. .................. 13 III. CONCLUSION ................................................................................................................. 14 Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 3 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Alday v. Organon USA, Inc., 2009 WL 3531802 (E.D. Mo. Oct. 27, 2009) ......................................................................................13 Amiri v. DynCorp Int’l, Inc., 2015 WL 166910 (N.D. Cal. Jan. 13, 2015) ......................................................................................3, 6 Barone v. Intercontinental Hotels Grp. PLC, 2016 WL 2937502 (N.D. Cal. May 20, 2016) .............................................................................5, 6, 10 Barron v. Pfizer, Inc., 2015 WL 5829867 (E.D. Mo. Oct. 6, 2015) ........................................................................................11 Barthomome v. Pfizer, Inc., 2016 WL 366795 (E.D. Mo. Jan. 29, 2016) ..........................................................................................8 Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008) ...............................................................................................................2 Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257 (9th Cir. 1989) ...........................................................................................................2, 3 Bristol-Myers Squibb Co. v. Superior Court (Anderson), 2016 WL 4506107 (Cal. Aug. 29, 2016) .......................................................................................11, 12 Cahen v. Toyota Motor Corp., 147 F. Supp. 3d 955 (N.D. Cal. 2015) .........................................................................................6, 9, 10 Calder v. Jones, 465 U.S. 783 (1984) ...............................................................................................................................2 Carpenter v. Sikorsky Aircraft Corp., 101 F. Supp. 3d 911 (C.D. Cal. 2015) ...................................................................................................9 Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240 (9th Cir. 1984) .............................................................................................................12 Corcoran v. CVS Health Corp., 2016 WL 948880 (N.D. Cal. Mar. 14, 2016) .........................................................................................6 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ................................................................................................................... passim In re Dynamic Random Access Memory (DRAM), 2005 WL 2988715 (N.D. Cal. Nov. 7, 2005) ......................................................................................14 Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 4 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evans v. Johnson & Johnson, 2014 WL 7342404 (S.D. Tex. Dec. 23, 2014) .......................................................................................8 Evans v. Johnson & Johnson, 2015 WL 1650402 (S.D. W. Va. Apr. 14, 2015) .................................................................................14 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) ................................................................................................................. passim Google Inc. v. Rockstar Consortium U.S. LP, 2014 WL 1571807 (N.D. Cal. Apr. 17, 2014) .......................................................................................7 Guillette v. PD-RX Pharm. Inc., 2016 WL 3094073 (W.D. Okla. June 1, 2016) ............................................................................ passim HID Global Corp. v. Isonas, Inc., 2014 WL 10988340 (C.D. Cal. Apr. 21, 2014) ...............................................................................9, 10 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) .............................................................................................................................13 Kanter v. Warner-Lambert Co., 265 F.3d 853 (9th Cir. 2001) .................................................................................................................9 Kraft v. Johnson & Johnson, 97 F. Supp. 3d 846 (S.D. W. Va. 2015) .................................................................................................8 Locke v. Ethicon, 58 F. Supp. 3d 757 (S.D. Tex. 2014) .....................................................................................................7 Manning v. PD-Rx Pharm. Inc., 2016 WL 3094075 (W.D. Okla. June 1, 2016) ....................................................................................11 Martinez v. Aero Caribbean, 764 F.3d 1062 (9th Cir. 2014) ...........................................................................................................2, 6 Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) ...............................................................................................................2 Payne v. Office of the Comm’r of Baseball, 2016 WL 1394369 (N.D. Cal. Apr. 8, 2016) .........................................................................................6 Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) ...............................................................................................................................4 Picot v. Weston, 780 F.3d 1206 (9th Cir. 2015) ...................................................................................................9, 11, 12 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) .............................................................................................................2, 8 Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 5 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS vi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In re Testosterone Replacement Therapy Prods. Liab. Litig. Coordinated Pretrial Proceedings, 2016 WL 640520 (N.D. Ill. Feb. 18, 2016) ...................................................................................11, 14 In re Vioxx Prods. Liab. Litig., 478 F. Supp. 2d 897 (E.D. La. 2007) ...................................................................................................13 In re W. States Wholesale Nat. Gas Litig., 605 F. Supp. 2d 1118 (D. Nev. 2009) ..................................................................................................14 Walden v. Fiore, 134 S. Ct. 1115 (2014) ...............................................................................................................9, 10, 13 Whitener v. Pliva, Inc., 606 F. App’x 762 (5th Cir. 2015) ..........................................................................................................8 In re: Zofran (Ondansetron) Prods. Liab. Litig., 2016 WL 2349105 (D. Mass. May 4, 2016) ........................................................................................13 Other Authorities Cal. Code Civ. P. § 410.10...........................................................................................................................2 Fed. R. Civ. P. 4(k)(1)(A) ............................................................................................................................2 Fed. R. Civ. P. 12(b)(2)................................................................................................................................1 Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 6 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff is attempting to leverage his participation in the In re: Viagra (Sildenafil Citrate) Products Liability Litigation (“Viagra MDL”) to hale Eli Lilly and Company, an Indiana corporation, into court in the Northern District of California despite the fact that Lilly is not a participant in that MDL, has not consented to be sued here, and has no connections to California that confer jurisdiction upon this Court. Plaintiff allegedly used Cialis, a prescription medicine approved to treat erectile dysfunction and manufactured by Lilly, outside of California, and none of his allegations or claims relate to or arise from Lilly’s California contacts. Under these circumstances, this Court cannot exercise personal jurisdiction over Lilly with respect to Plaintiff’s claims, as (i) he is suing a defendant that is not at all “at home” in California and (ii) the relevant conduct at issue all took place outside California. See Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014). Accordingly, Lilly moves to dismiss this Complaint against it for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). I. BACKGROUND Plaintiff William Tissair brings claims against Lilly and Pfizer, Inc. (“Pfizer”) arising out of his use of Cialis and Viagra, Pfizer’s erectile dysfunction medicine. He alleges that Cialis and Viagra “caused” him to develop melanoma, a type of skin cancer, and that Lilly and Pfizer each failed to warn about the alleged risk. See Compl. ¶¶ 83-34, 108-09, 35-37, dkt. 1. No party in this case is a California citizen: Although Mr. Tissair alleges that he resides in California, he also alleges that he is domiciled in Ohio. Compl. ¶¶ 1, 15. Pfizer is a Delaware corporation with its principal place of business in New York, and Lilly is an Indiana corporation with its principal place of business in Indiana. Id. at ¶¶ 2, 6. Although Plaintiff notes that Lilly is registered to do business in this district and has a Biotechnology Center in San Diego, see id. at ¶ 18-19, he does not allege that any of Lilly’s California contacts relate to his particular claims. Indeed, he is quite clear that he was “prescribed and ingested Viagra® and Cialis® in Ohio and sustained injuries in Ohio.” Id. ¶ 15. Plaintiff alleges that there is jurisdiction over Pfizer and Lilly because of the existence of the Viagra MDL. See id. at ¶¶ 20-21. In that MDL proceeding, the Court adopted the parties’ agreed pretrial order, wherein Pfizer agreed not to challenge the personal jurisdiction of out-of-state plaintiffs who file cases directly in the MDL for the purposes of pretrial proceedings. See Pretrial Order No. 5 Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 7 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ¶¶ 1-3 (Aug. 10, 2016), MDL 2691, No. 3:16-md-02691-RS, Dkt. # 91 (Davidson Decl., Ex. A). The pretrial order applies only to “cases pending against Defendant Pfizer Inc. in MDL No. 2691 and to all actions against Pfizer that have been or will in the future be originally filed in, transferred to, or properly removed to this Court and assigned thereto as part of this MDL No. 2691.” Id. at ¶ 1. Although Pfizer can certainly agree to personal jurisdiction in this Court for administrative convenience, that agreement cannot extend to Lilly, which has no role in the Viagra MDL. Because Plaintiff cannot assert personal jurisdiction over Lilly, and Lilly has not consented to personal jurisdiction, Lilly must be dismissed from this Complaint. II. ARGUMENT A. Applicable Jurisdictional Framework Plaintiff bears the initial burden of demonstrating, by a preponderance of the evidence, facts justifying the exercise of personal jurisdiction. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). “Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citing Fed. R. Civ. P. 4(k)(1)(A)). “California’s long-arm statute permits a court to exercise personal jurisdiction over a defendant to the extent permitted by the Due Process Clause of the Constitution.” Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998) (citing Cal. Code Civ. P. § 410.10). Personal jurisdiction over each defendant must be assessed individually. See Calder v. Jones, 465 U.S. 783, 790 (1984); Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir. 1989). Thus, one nonresident defendant’s consent to the jurisdiction of a court has no bearing on the court’s jurisdiction over another nonresident defendant. Id. B. Plaintiff Cannot Establish General Jurisdiction Over Lilly. 1. A Corporation is Subject to General Jurisdiction Only Where It is “at Home.” “The Supreme Court’s recent decision in Daimler makes clear the demanding nature of the standard for general personal jurisdiction over a corporation.” Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (citing Daimler, 134 S. Ct. at 751). In Daimler, the Supreme Court rejected the notion that general jurisdiction is appropriate wherever a corporation “engages in a substantial, Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 8 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continuous, and systematic course of business.” 134 S. Ct. at 761. Rather, the Court reiterated that a corporation is subject to general jurisdiction “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.’” Id. at 751 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)). The Daimler Court clarified that the “paradigm” forums for general jurisdiction are a corporation’s (i) place of incorporation and (ii) principal place of business, id. at 760, while noting that only in an “exceptional case”-where a defendant’s contacts or operations in the forum are “so substantial and of such a nature” that they reach an “exceptional” level-will general jurisdiction lie anywhere else, id. at 761 n.19. The Court further explained that, where a corporation’s activities span the nation or the globe, a corporation’s in-forum “local activity” should not give the state authority over a “far larger quantum” of nationwide or worldwide activity bearing “no connection to any in-state activity.” Id. at 762 n.20 (citation omitted). Otherwise, “[a] corporation that operates in many places” would “be deemed at home in all of them.” Id. Such an “exorbitant exercise[] of all-purpose jurisdiction” would “expose” the corporation “to suits having no connection whatever to the Forum state,” and would make it impossible for the corporation to “‘structure [its] primary conduct with some minimum assurance as to where that conduct will and will not render [it] liable to suit.’” Id. at 761-62 (citations omitted). The general-jurisdiction inquiry has been dubbed “‘the home-state test,’ and outside a corporation’s place of incorporation or principal place of business it is rarely satisfied.” Amiri v. DynCorp Int’l, Inc., 2015 WL 166910, at *2 (N.D. Cal. Jan. 13, 2015) (citation omitted). Although Daimler conceded the possibility of an “exceptional case,” “‘in the overwhelming majority of cases there will be no occasion to explore whether [such an] exception might apply’ because the Supreme Court’s analysis in Daimler focused almost exclusively on the paradigmatic bases for general jurisdiction-the corporation’s place of incorporation and principal place of business.” Amiri, 2015 WL 166910, at *3 (citation omitted). Indeed, the only “exceptional case” the Supreme Court has ever identified, Perkins, arose from unique wartime circumstances. Daimler, 134 S. Ct. at 761 n.19. In Perkins, the defendant was a Philippines corporation, but during Japan’s World War II occupation of the Philippines, the defendant’s president moved to Ohio, where he established an office, kept the Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 9 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 company’s files, and conducted the company’s activities. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447-48 (1952). Although the plaintiff sued the company in Ohio on a claim that had no connection to Ohio, the Supreme Court upheld the exercise of general jurisdiction over the defendant because Ohio had become its “‘principal, if temporary, place of business.’” Daimler, 134 S. Ct. 756 (citation omitted). That is, “[g]iven the wartime circumstances, Ohio could be considered ‘a surrogate for the place of incorporation or head office’-“the center of the corporation’s wartime activities.” Id. at 756 n.8 (citation omitted)). Such unique circumstances are absent here. 2. Lilly is Not at Home in California. Under the framework laid down in Goodyear and Daimler, Plaintiff cannot satisfy his burden to establish general jurisdiction over Lilly because Lilly is not “at home” in California. Plaintiff’s complaint explicitly alleges that Lilly is incorporated and has its principal place of business in Indiana. Compl. ¶ 6. Thus, the Northern District of California is not a paradigm all-purpose forum. See Daimler, 134 S. Ct. at 761. Nor has Plaintiff alleged any facts rendering this case jurisdictionally “exceptional.” Plaintiff has not pled, and cannot plead, that Lilly maintains corporate headquarters in California, is managed from California, or otherwise has unique, Perkins-level contacts with California. Indeed, Plaintiff has not pled, and cannot plead, that Lilly’s California contacts are especially significant relative to its nationwide and worldwide contacts. If Lilly’s quantum of California activity were enough to sustain general jurisdiction, then Lilly would be “at home” everywhere-in direct contravention of Goodyear, 131 S. Ct. at 2857, and Daimler, 134 S. Ct. at 761-62. To be sure, Plaintiff conclusorily alleges: (i) that Lilly conducts “a substantial amount of business activity” in the Northern District of California; (ii) that Lilly’s Biotechnology Center is located in San Diego, California; (iii) that Lilly has “several offices in California”; (iv) that Lilly is “registered to conduct business” in the Northern District of California; and (v) that Lilly “receive[s] substantial profits from the sales of Cialis” in California. Compl. ¶¶ 18-19. But Plaintiff’s boilerplate allegations are precisely the sort that the Supreme Court spurned in Daimler. There, the defendant Daimler’s subsidiary made substantial sales in California: the subsidiary was the largest supplier of luxury vehicles to the California market, over 10% of its new-vehicle sales in the United States took place in Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 10 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California, and its California sales accounted for 2.4% of Daimler’s worldwide sales. 134 S. Ct. at 752. Not only did the subsidiary’s extensive California business amount to billions of dollars in sales, but the subsidiary also had multiple offices and facilities in California, including a regional headquarters. Id. at 766-67 (Sotomayor, J., concurring). Still, even after imputing the subsidiary’s California contacts to Daimler, the Court ruled that Daimler’s “substantial, continuous, and systematic course of business” in the state was insufficient for general jurisdiction. Id. at 761-62. Because Daimler was not incorporated here and did not have its principal place of business here-and because its California operations were not “so substantial and of such a nature” that they approached an “exceptional,” Perkins-like level-the Court held that Daimler was not “at home” in California. Id. If Daimler’s “California activities” had “sufficed to allow adjudication” here, then “every other State” where its sales were “sizable” could assert general jurisdiction over it-an “unacceptably grasping” result. Id. In this case, too, if this Court were to agree with Plaintiff that Lilly’s California activities are enough for general jurisdiction, then Plaintiff could hale Lilly into court in any state where its business was sizable but where it was neither incorporated nor had its principal place of business. Daimler forecloses such jurisdictional overreach. Plaintiff’s conclusory allegations that Lilly conducts substantial and continuous business in California, even if accepted as true, are legally insufficient to render Lilly “at home” in California. 3. Post-Daimler Authority in California’s Federal Courts Militates Against General Jurisdiction. In the wake of Goodyear and Daimler, federal courts in California have enforced the Supreme Court’s high bar for asserting general jurisdiction over nonresident corporate defendants. In Barone, for example, an out-of-state plaintiff sued defendant InterContinental Hotels Group (“ICH PLC”) in this District after she suffered an injury at a hotel in Ireland. Barone v. Intercontinental Hotels Grp. PLC, No. 15-CV-04990-JCS, 2016 WL 2937502, at *1 (N.D. Cal. May 20, 2016) (Spero, M.J.). California was neither the defendant’s place of incorporation nor its principal place of business. Id. at *7. Although plaintiff contended that jurisdiction was proper because defendant actively “manage[d] several hotels in California” and “directed marketing activities to California,” id., Chief Magistrate Judge Spero held that plaintiff could not demonstrate an “exceptional case” to warrant general jurisdiction because Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 11 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “[t]here is no indication that California holds any special significance” to the hotel brand. Id. at *8. In so holding, the court emphasized that “regardless of how active a role IHG PLC plays in managing its hotels, exercising general jurisdiction in this case would contradict the Supreme Court’s admonishment that a ‘corporation that operates in many places can scarcely be deemed at home in all of them.’” Id. (quoting Daimler, 134 S. Ct. at 762 n.20). Judge Conti reached the same conclusion in Amiri, a personal injury case arising from a car accident in Afghanistan. Amiri v. DynCorp Int’l, Inc., No. 14-CV-03333 SC, 2015 WL 166910, at *1 (N.D. Cal. Jan. 13, 2015). There, the court held that it could not exercise general jurisdiction over any of defendant’s nonresident entities-even though one entity was registered to do business in California, had 239 employees at two offices in California, and two contracts to do business in California-because none of them could be deemed “at home” in California when considering their activities “in their entirety, nationwide and worldwide.” Id. at *4-5 (quoting Daimler, 134 S. Ct. at 762 n.20). As such, the Court held that defendant’s “contacts still fall far short of showing that this is an ‘exceptional case’” and recognized that “[c]oncluding otherwise would, in light of [defendant’s] substantial worldwide and nationwide activities, render it ‘at home’ virtually everywhere it operates.” Id. at *6 (quoting Daimler, 134 S. Ct. at 762 n.19). These cases are consistent with the overwhelming trend in the wake of Daimler. See, e.g., Martinez, 764 F.3d at 1070 (affirming absence of general jurisdiction over nonresident airplane manufacturer facing a wrongful death action, despite allegations that defendant had sales contracts with California companies worth up to $450 million, sent company representatives to California for business, and advertised in California publications); Payne v. Office of the Comm’r of Baseball, No. 15-CV- 03229-YGR, 2016 WL 1394369, at *6 (N.D. Cal. Apr. 8, 2016) (Rogers, J.) (declining to assert general jurisdiction over out of state baseball teams despite regular travel to California, certain employees in state, and receipt of revenue from the state); Corcoran v. CVS Health Corp., - F. Supp. 3d -, 2016 WL 948880, at *5 (N.D. Cal. Mar. 14, 2016) (Rogers, J.) (declining to assert general jurisdiction where plaintiffs contend that CVS Health had a substantial number of pharmacies, maintained two distribution centers and solicited employees in California); Cahen v. Toyota Motor Corp., 147 F. Supp. 3d 955, 963 (N.D. Cal. 2015) (Orrick, J.) (declining to assert general jurisdiction over Ford despite extensive in-state Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 12 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sales and multiple California facilities); Google Inc. v. Rockstar Consortium U.S. LP, 2014 WL 1571807, at *5 (N.D. Cal. Apr. 17, 2014) (Wilken, J.) (declining to assert general jurisdiction over the nonresident Rockstar, despite its “significant patent licensing business aimed at the technology industry in the Silicon Valley,” and despite the CEO’s concession that the defendant “naturally would have to come into constant contact with the forum state”). These cases underscore that Lilly is the type of entity that the Daimler rule is intended to protect. Lilly is not “at home” in the Northern District of California-lest it be “at home” everywhere. 4. Post-Daimler Pharmaceutical Authority Militates Against General Jurisdiction. In harmony with the Supreme Court’s framework, courts across the country have dismissed claims analogous to those at issue here-i.e., product liability claims by non-forum resident plaintiffs against nonresident pharmaceutical defendants. To illustrate, in Locke v. Ethicon, 58 F. Supp. 3d 757 (S.D. Tex. 2014), plaintiffs from different states brought a products liability action against pharmaceutical companies in Texas. Id. at 759-60. Both defendants were New Jersey corporations with their principal places of business in New Jersey. Id. In a straightforward application of Daimler, the court granted the defendants’ motion to dismiss the out-of-state plaintiffs for lack of general jurisdiction. Id. at 762-65. First, the court rejected the argument that the defendants’ “substantial revenue earned from Texas sales” could support general jurisdiction: “The argument resembles the very stream-of- commerce theory of general jurisdiction rejected by the Supreme Court.” Id. at 762. Second, the court rebuffed the plaintiffs’ attempt to base general jurisdiction on “the defendants’ use of Texas-based sales representatives, division managers, and a consultant to train physicians on how to use their products and to market and sell their products in Texas.” Id. at 764. In Daimler, after all, the Court “had the opportunity” to-but did not-create an exception for “service and sales support to customers provided by [a defendant] throughout the forum State.” Id. At bottom, the plaintiffs had failed to show any “exceptional circumstances” to alter the proper jurisdiction, which remained New Jersey. Id. at 765. Likewise, in Guillette v. PD-RX Pharm. Inc., nonresident plaintiffs brought a products liability action in Oklahoma against various defendants that allegedly “manufactured, marketed, distributed, or sold” propoxyphene-containing products. No. 5:15-CV-00564-R, 2016 WL 3094073, at *1 (W.D. Okla. Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 13 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 June 1, 2016). The court dismissed the nonresident pharmaceutical defendants for lack of personal jurisdiction. Id. at *8. Even though plaintiffs alleged that defendants marketed and sold pharmaceutical products to Oklahoma residents, employed sales representatives who were Oklahoma residents, “conducted extensive commercial activity within Oklahoma for years, and transacted business in Oklahoma,” and some defendants were registered to do business in Oklahoma, the court found that such allegations were “insufficient to show that Defendants are ‘at home’ in Oklahoma.” Id. at *4, *6 (citing Daimler, 134 S. Ct. at 757); see also, e.g., Whitener v. Pliva, Inc., 606 F. App’x 762, 765 (5th Cir. 2015) (affirming dismissal for lack of general jurisdiction because “[n]othing in the record shows that Teva Ltd.’s contacts with Louisiana are continuous and systematic enough to make this such an exceptional case.”) (quotations omitted); Barthomome v. Pfizer, Inc., No. 4:15CV788 HEA, 2016 WL 366795, at *2 (E.D. Mo. Jan. 29, 2016) (declining to assert general jurisdiction over pharmaceutical despite in-state marketing and sales); Kraft v. Johnson & Johnson, 97 F. Supp. 3d 846, 849, 853-54 (S.D. W. Va. 2015) (same); Evans v. Johnson & Johnson, 2014 WL 7342404, at *5 (S.D. Tex. Dec. 23, 2014) (same). Taken together, Daimler and its progeny stand for the principle that general jurisdiction over a nonresident pharmaceutical defendant is limited to the paradigmatic forums-where it is incorporated or has its principal place of business-except for the most exceptional cases. See Daimler, 134 S. Ct. at 761 n.19. Here, in light of the overwhelming weight of authority, Plaintiff’s allegations are inadequate to transform Lilly’s “home” from Indiana to California. C. Plaintiff Cannot Establish Specific Jurisdiction Over Lilly. 1. Specific Jurisdiction Hinges on Relatedness. The Ninth Circuit applies three factors to determine whether a state has a sufficient interest in a lawsuit to justify the exercise of specific jurisdiction over a nonresident corporate defendant: (i) the defendant must have purposefully availed itself “of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws”; (ii) the cause of action must “arise[] out of or relate[] to the defendant’s forum-related activities; and (iii) “the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.” Schwarzenegger, 374 F.3d at 802. The plaintiff bears the burden on the first two prongs, and failure to establish either requires dismissal for lack of personal jurisdiction. Id. Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 14 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Supreme Court has clarified that the touchstone for asserting specific jurisdiction over a nonresident defendant is the “the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (citation omitted). To satisfy due process, the defendant’s “challenged conduct” must “connect” it to the forum “in a meaningful way.” Id. at 1125. That is, “the defendant’s suit-related conduct must create a substantial connection with the forum State.” Id. at 1121 (emphasis added); see also Picot v. Weston, 780 F.3d 1206, 1215 (9th Cir. 2015) (rejecting specific jurisdiction where none of defendant’s challenged conduct had anything to do with California itself, plaintiff’s injury was “not tethered to California in any meaningful way,” and the “effects of [the defendant’s] actions” were “not connected to the forum State in a way that makes those effects a proper basis for jurisdiction”); Cahen v. Toyota Motor Corp., 147 F. Supp. 3d 955, 962 (N.D. Cal. 2015) (rejecting specific jurisdiction where claims arise from allegedly defective vehicles that were purchased or leased outside of California and “none of those claims is tied to [defendant’s] activities in California); Carpenter v. Sikorsky Aircraft Corp., 101 F. Supp. 3d 911, 923 (C.D. Cal. 2015) (same where helicopter manufacturer’s California contacts were not “linked to the Helicopter or its crash that is at issue in this case. That link is required.”); HID Global Corp. v. Isonas, Inc., 2014 WL 10988340, at *5 (C.D. Cal. Apr. 21, 2014) (“[G]eneral business contacts to the forum and efforts to market or sell products in the forum are relevant to general jurisdiction, but generally not relevant to specific jurisdiction.”). 2. Plaintiff is a Citizen of Ohio Plaintiff’s Complaint alleges that he is a resident of California but is domiciled in Ohio, where he was prescribed Cialis and where he was allegedly injured. Compl. ¶¶ 1, 15. The statute that grants diversity jurisdiction, 28 U.S.C. § 1332, discusses citizenship, not residency. “The natural person’s state citizenship is then determined by her state of domicile, not her state of residence.” Kanter v. Warner- Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Accordingly, Plaintiff must be considered an Ohio citizen, not a California one, for purposes of assessing this Court’s jurisdiction. 3. Plaintiff’s Claims Do Not Relate to Lilly’s California Contacts. In this action, Plaintiff alleges that he suffered injuries because Lilly inadequately warned against the alleged risk of exacerbating and/or developing melanoma associated with Cialis. See Compl. ¶¶ 77- 84. As noted, Lilly is an Indiana corporation headquartered in Indiana. Plaintiff does not allege that Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 15 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lilly’s alleged acts, omissions, or operations in California-or the effects of Lilly’s alleged acts, omissions, or operations in California-caused or were related to his injuries. Id. ¶¶ 41-202. Plaintiff also does not allege that he was prescribed or treated with Cialis anywhere other than Ohio, his state of citizenship, or that the marketing and sale of Cialis leading to his prescription for and treatment with the medicine occurred anywhere other than Ohio. Id. ¶¶ 15, 41-202. Nor does he allege that he purchased, ingested, or suffered any injury from Cialis-or was treated for any such injury-anywhere other than Ohio, his state of citizenship. He explicitly acknowledges that he “is domiciled in Ohio, was prescribed and ingested Viagra® and Cialis® in Ohio and sustained injuries in Ohio.” Id. ¶ 15. Plaintiff’s allegations do not relate to Lilly’s California contacts or activities. See Cahen, 147 F. Supp. 3d at 962. Indeed, there is no connection between Lilly’s suit-related conduct and California-much less a substantial one. See Walden, 134 S. Ct. at 1121. The Barone court’s finding that it lacked specific jurisdiction over a foreign defendant hotel brand is instructive. The court provided a clear explanation for why a non-California plaintiff’s injury outside of California did not arise out of or relate to any of defendant’s California-related activities : How IHG PLC managed its hotels in California or marketed its foreign hotels to consumers in California had no bearing on Barone’s injury, because Barone was injured at a hotel in Ireland and there is no indication that Barone, a Florida citizen, has even set foot in California. Barone does not suggest that any relevant management or marketing decision by IHG PLC - a corporation based in the United Kingdom - was made in California. Barone’s claim rests on whether some aspect of the equipment or service at the Dublin Hotel was deficient; IHG PLC’s California hotels may or may not have exhibited the same deficiency, but Barone’s experience in Ireland was not affected in any way by the condition of any hotel in California. The Court concludes that Barone has not met her burden to show that her claim “arises out of or relates to the defendant’s forum-related activities.” Barone, 2016 WL 2937502, at *6. Plaintiff, here, likewise alleges that he was prescribed Cialis and injured outside of California, and has not alleged that he was “affected in any way” by any activity Lilly may have had in California. Id. The recent Guillette decision in the Western District of Oklahoma reinforces Barone’s reasoning. There, the court held that the plaintiffs “did not meet their prima facie burden to show that their injuries arose out of” the defendant pharmaceuticals’ activities in Oklahoma. 2016 WL 3094073, at *5. The court reasoned that the plaintiffs failed “to draw any connection between their out-of-state injuries and Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 16 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ in-state activities” because the products were ingested outside of Oklahoma and “[t]he injuries they complain of occurred outside of Oklahoma and arose out of Defendants’ marketing and sales of propoxyphene-containing products outside of Oklahoma.” Id. Accordingly, the court could not assert specific jurisdiction over the nonresident plaintiffs’ claims. Id.; see also Manning v. PD-Rx Pharm. Inc., No. 5:15-CV-00566-R, 2016 WL 3094075, at *5 (W.D. Okla. June 1, 2016) (declining to exercise specific jurisdiction because “Plaintiffs have put forth no evidence the products were ingested in Oklahoma nor any argument to draw any connection between their out-of-state injuries and Defendants’ in-state activities”); In re Testosterone Replacement Therapy Prods. Liab. Litig. Coordinated Pretrial Proceedings, No. 14 C 1748, 2016 WL 640520, at *4 (N.D. Ill. Feb. 18, 2016) (holding that a Missouri court would not have specific jurisdiction over non-resident defendants where plaintiff’s “claims are based entirely on defendants’ conduct in, and contacts with, Illinois”); Barron v. Pfizer, Inc., No. 4:15-CV-584 CAS, 2015 WL 5829867, at *1 (E.D. Mo. Oct. 6, 2015) (declining to assert specific jurisdiction because “controversy at issue is not related to or arising out of any of Pfizer’s contacts with Missouri”). Here, too, this Court cannot exercise specific jurisdiction over Plaintiff’s claims because he has failed to show any causal or logical link between his claims of harm in Ohio and Lilly’s California contacts and activities. Accordingly, the Court need not reach the third prong of the specific causation analysis. See Picot v. Weston, 780 F.3d 1206, 1215 (9th Cir. 2015) (“Because [plaintiff] has not established the second prong of our [specific jurisdiction] test, we need not address the third prong.”). Lilly is aware of the California Supreme Court’s recent decision unanimously declining to find general jurisdiction over a non-resident pharmaceutical manufacturer but ruling 4-3 that a California state court may nevertheless assert specific jurisdiction in claims brought by out-of-state plaintiffs. See Bristol-Myers Squibb Co. v. Superior Court (Anderson), S221038, -- P.3d --, 2016 WL 4506107, at *1 (Cal. Aug. 29, 2016). The court reasoned that even though 592 out of 678 plaintiffs purchased, ingested, and were allegedly injured by the medicine outside of California, the nonresident plaintiffs’ claims “arise from [the defendant’s] purposeful contacts with [California]” because the pharmaceutical’s maintenance of certain research and development facilities in California and its “nationwide marketing, Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 17 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 promotion, and distribution of [the medicine] created a substantial nexus between the nonresident plaintiffs’ claims and the company’s contacts in California.” Id. at *12. The BMS court’s interpretation of the Due Process Clause does not bind this Court, Congoleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242 (9th Cir. 1984), and its ruling cannot be squared with the U.S. Supreme Court’s decision in Daimler. By holding that a nationwide marketing scheme renders a nonresident’s claims “related” to a company’s contacts in California, the court effectively recreated general jurisdiction in California courts for all companies with nationwide sales and operations under the guise of specific jurisdiction. See Bristol-Myers Squibb Co., 2016 WL 4506107, at *20 (Werdegar, J., dissenting). Indeed, the dissent aptly recognized that the majority’s ruling is at odds with due process: Such an aggressive assertion of personal jurisdiction is inconsistent with the limits set by due process. Although those limits are more flexible and less strictly territorial than in the past, the high court has explained that they still act to keep any one state from encroaching on the others . . . . That [defendant] marketed and sold [a product] throughout the United States, presumably using much of the same advertising in many markets, does not give California authority, under our federal system, to assert jurisdiction over claims arising throughout the nation. Id. at *33 (citation and quotation marks omitted). In any event, the BMS case is distinguishable for three reasons. First, the BMS court’s ruling hinged in part on the California residence of co-defendant McKesson Corporation, the alleged in-state distributor of the medication. Id. at *12, *17. Here, both defendants’ state of incorporation and principal place of business are outside of California, and Plaintiff makes no allegations that any California distributer gave rise to his claims. Second, the BMS court reasoned that the concentration of 86 California residents lumped together in a small number of complaints with non-California plaintiffs favored the exercise of jurisdiction over all 678 plaintiffs. Id. at *15. Here, in contrast, none of the complaints at issue involve any California resident. Finally, in contrast to BMS, where 678 plaintiffs joined to file eight complaints and “[b]oth the resident and nonresident plaintiffs’ claims are based on . . . the [same] assertedly misleading marketing and promotion,” id. at *12, here, each individual filed his own complaint and cannot piggyback on similar claims made by a California co-plaintiff. The BMS majority’s decision seemed content to allow California courts serve as an efficient forum for out-of-state Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 18 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiffs joined with California residents, but in the federal system that is a decision statutorily entrusted to the Judicial Panel on Multidistrict Litigation under Section 1407. No centralization is necessary for the small number of pending Cialis cases, and whatever the merits of the BMS majority’s efficiency rationale, it certainly cannot fill the jurisdictional void in federal court here. 4. Exercising Specific Jurisdiction Over Lilly is Unreasonable. The United States Supreme Court has explained the importance of establishing both general and specific personal jurisdiction. While general jurisdiction enables a state to adjudicate disputes against a company that has made its home there, thereby effectuating the state’s interest in regulating the conduct of resident corporations, specific jurisdiction ensures that the state adjudicates only those disputes where it has a legitimate interest, thereby protecting defendants from being haled into arbitrary forums and preventing states from reaching beyond the limits imposed on them as coequal sovereigns in our federal system. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Walden, 134 S. Ct. at 1122. With respect to Plaintiff’s claims, exercising specific jurisdiction over Lilly would upend this balance and eviscerate the relatedness prong of the specific jurisdiction analysis. Indeed, the Court can only exercise personal jurisdiction over Pfizer in directly-filed cases because Pfizer has consented to waive its jurisdictional arguments for administrative convenience in pretrial proceedings. But Lilly is not bound by this agreement, nor has it waived its right to challenge cases not properly before this Court. It would be unjust to hold Lilly to the terms of Pfizer’s stipulation solely because it is named as a co- defendant in Plaintiff’s case. See In re Vioxx Prods. Liab. Litig., 478 F. Supp. 2d 897, 904 (E.D. La. 2007) (emphasizing that a waiver “stipulation and agreement is by Merck only and does not apply to any other defendant, including any of Merck's insurers, employees, or representatives.”); see also Alday v. Organon USA, Inc., No. 4:08MD1964 RWS, 2009 WL 3531802, at *2 (E.D. Mo. Oct. 27, 2009) (where no waiver stipulation has entered, “[n]o case may be filed directly in the MDL case [and a] plaintiff must file a case where jurisdiction is proper.”). MDL courts regularly grant motions to dismiss claims against defendants on jurisdictional grounds. See, e.g., In re: Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-CV-13760-FDS, 2016 WL 2349105, at *3-*5 (D. Mass. May 4, 2016) (dismissing out-of-state plaintiffs for lack of personal jurisdiction because substantial in-state product sales and registration to do business are insufficient to Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 19 of 20 Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 establish general jurisdiction and plaintiffs do not allege any in-state activity relating to their claims); In re Testosterone Replacement Therapy Prods. Liab. Litig., 2016 WL 640520, at *6 (dismissing case from MDL upon holding that originating court lacked personal jurisdiction); Evans v. Johnson & Johnson, No. 2:14-CV-29700, 2015 WL 1650402, at *7 (S.D. W. Va. Apr. 14, 2015) (granting motion to dismiss “all claims brought by the ninety-four non-Texas, out-of-state plaintiffs in this action, which fail for lack of personal jurisdiction”); In re Dynamic Random Access Memory (DRAM), No. C 02-1486 PJH, 2005 WL 2988715, at *9 (N.D. Cal. Nov. 7, 2005) (dismissing several defendants from a multidistrict litigation upon holding “that personal jurisdiction cannot be asserted over the moving defendants”); In re W. States Wholesale Nat. Gas Litig., 605 F. Supp. 2d 1118, 1141 (D. Nev. 2009) (granting motion to dismiss and dismissing a co-defendant from a multidistrict litigation for lack of personal jurisdiction). Plaintiff would of course remain free to file his case against Lilly either in his home state, where he could properly assert claims against any viable defendant, or in Lilly’s home court in the Southern District of Indiana (where some plaintiff lawyers prosecuting the Viagra MDL have recently filed a small number of cases). But Plaintiff cannot overcome his jurisdictional deficiency by application of a direct filing order in an MDL involving a different defendant. The Court should accordingly dismiss Lilly from Plaintiff’s suit. III. CONCLUSION This Court should grant Lilly’s motion to dismiss Lilly from Plaintiff’s lawsuits for lack of personal jurisdiction. DATED: October 21, 2016 Respectfully submitted, By: /s/ Jeffrey M. Davidson Jeffrey M. Davidson (Bar No. 248620) COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, California 94111-5356 Telephone: (415) 591-6000 Attorney for Defendant Eli Lilly and Company Case 3:16-cv-05265-RS Document 11 Filed 10/21/16 Page 20 of 20 Davidson Decl. ISO Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey M. Davidson (Bar No. 248620) COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, California 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Email: jdavidson@cov.com Attorney for Defendant Eli Lilly and Company UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION WILLIAM TISSAIR, Plaintiff, v. PFIZER, INC. and ELI LILLY AND COMPANY, Defendants. Civil Case No.: 3:16-cv-05265-RS DECLARATION OF JEFFREY DAVIDSON IN SUPPORT OF DEFENDANT ELI LILLY AND COMPANY’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Date: December 14, 2016 Time: 2:30 p.m. Place: Courtroom 3 - 17th Floor Judge: Honorable Richard Seeborg Case 3:16-cv-05265-RS Document 11-1 Filed 10/21/16 Page 1 of 2 Davidson Decl. ISO Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JEFFREY M. DAVIDSON I, Jeffrey M. Davison, hereby declare, and state as follows: 1. I am an attorney duly admitted to practice law before all the Courts of the State of California and this Court. I am a partner at the law firm of Covington & Burling LLP, counsel of record for defendant Eli Lilly and Company. I make this declaration in support of Defendant Eli Lilly and Company’s Motion to Dismiss For Lack of Personal Jurisdiction. I have personal knowledge of the facts set forth below, and if called as a witness, I would and could competently testify thereto. 2. Attached hereto as Exhibit “A” is a true and correct copy of Pretrial Order No. 5: Procedures for Direct Filing, Master Pleadings, and Service of Process, in the In Re: Viagra (Sildenafil Citrate) Products Liability Litigation, MDL No. 2691, No. 3:16-md-02691-RS, Dkt. # 91. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration was executed this 21st day of October, 2016, at San Francisco, California. /s/ Jeffrey M. Davisdon JEFFREY M. DAVIDSON Case 3:16-cv-05265-RS Document 11-1 Filed 10/21/16 Page 2 of 2 EXHIBIT A Case 3:16-cv-05265-RS Document 11-2 Filed 10/21/16 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- 3:16-md-02691-RS PROCEDURES FOR DIRECT FILING, MASTER PLEADINGS, AND SERVICE OF PROCESS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION IN RE: VIAGRA (SILDENAFIL CITRATE) PRODUCTS LIABILITY LITIGATION Case No. 3:16-md-02691-RS MDL No. 2691 This Document Relates to: ALL ACTIONS [PROPOSED] PRETRIAL ORDER No. __: PROCEDURES FOR DIRECT FILING, MASTER PLEADINGS, AND SERVICE OF PROCESS I. SCOPE OF ORDER 1. Applicability of Order. This Order applies to all cases pending against Defendant Pfizer Inc. (“Pfizer”) in MDL No. 2691 and to all actions against Pfizer that have been or will in the future be originally filed in, transferred to, or properly removed to this Court and assigned thereto as part of this MDL No. 2691. II. DIRECT FILING OF CASES IN MDL NO. 2691 2. Direct Filing Permitted. To promote judicial efficiency and eliminate delays associated with the transfer to this Court of cases filed in or removed to other federal district courts, any Plaintiff whose case would be subject to transfer to MDL No. 2691 may file his or her case directly into MDL No. 2691 in the Northern District of California, San Francisco. 3. Pfizer Shall Not Challenge Venue for Pretrial Purposes. Each case filed directly into MDL No. 2691 by a Plaintiff who resides in a federal district other than the Northern District of California will be filed into MDL No. 2691 for the purposes of pretrial proceedings, consistent with the Judicial Panel on Multidistrict Litigation’s April 7, 2016 Transfer Order. Pfizer will not challenge the venue of any action filed directly into MDL No. 2691 for purposes of pretrial proceedings. 4. No Lexecon Waiver. For cases filed directly into MDL No. 2691, the Parties preserve and do not waive any and all rights under Lexecon Inc. v. Milberg Weiss, 523 U.S. 26 5 Case 3:16-md-02691-RS Document 91 Filed 08/10/16 Page 1 of 6Case 3:16-cv-05 5-RS Document 11-2 Filed 10/21/16 Page 2 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- 3:16-md-02691-RS PROCEDURES FOR DIRECT FILING, MASTER PLEADINGS, AND SERVICE OF PROCESS (1998) to have each case remanded to the district of traditional venue for trial set forth in paragraph 10(e) herein. 5. No Determination Regarding Jurisdiction or Venue. The inclusion of any case in MDL No. 2691, whether such case was or will be filed originally or directly in the Northern District of California, or transferred or removed to the Northern District of California, shall not constitute a determination by this Court that jurisdiction or venue is proper in this district. 6. No Impact on Choice of Law. The fact that a case was filed directly in MDL No. 2691 pursuant to this Order will have no impact on choice of law, including the statute of limitations that otherwise would apply to an individual case had it been filed in another court and removed and/or transferred to this Court. III. MASTER COMPLAINT 7. Purpose of Master Pleadings. In light of the number of Complaints filed to date and likely to be filed in the future in MDL No. 2691, and the inefficiencies of drafting those Complaints and individual Answers to those Complaints, the Parties have agreed to the following procedures for the use of Master Pleadings. Nothing in this Order is intended to (or does) alter the applicable provisions of the Federal Rules of Civil Procedure or the Local Rules of this Court, except as otherwise provided herein or in any subsequent Order. 8. Deadline for Master Complaint. On or before September 9, 2016, the Plaintiffs’ Steering Committee (“PSC”) shall file in MDL No. 2691 a Master Complaint on behalf of all Plaintiffs asserting claims in MDL No. 2691. IV. SHORT FORM COMPLAINTS 9. Content of Short Form Complaints. At the same time the PSC files the Master Complaint, the PSC also shall file as Exhibit 1 thereto a Master Short Form Complaint, which shall be an abbreviated form that future Plaintiffs will complete in lieu of filing new standalone Complaints. All Short Form Complaints shall adopt the Master Complaint by reference and shall contain, at a minimum, for each individual case: a. The name of the Plaintiff(s); b. The city and state in which Plaintiff(s) currently resides; Case 3:16-md-02691-RS Document 91 Filed 08/10/16 Page 2 of 6Case 3:16-cv-05 5-RS Document 11-2 Filed 10/21/16 Page 3 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 3:16-md-02691-RS PROCEDURES FOR DIRECT FILING, MASTER PLEADINGS, AND SERVICE OF PROCESS c. The city and state in which Plaintiff(s) resided at the time of the injury allegedly caused by Viagra (and, if the Viagra user is deceased, where the Viagra user resided at the time of his alleged injury); d. The basis for subject matter jurisdiction in this Court; e. The federal district court in which the action otherwise would have been filed absent the direct filing procedures adopted by this Court; f. The dates that the Viagra user ingested Viagra; g. Whether the Plaintiff is alleging that he developed melanoma as a result of ingesting Viagra, and, if so, the stage and type of melanoma (if known at the time of filing the Short Form Complaint); h. Whether the Plaintiff is alleging any injury other than melanoma as a result of the use of Viagra, and, if so, the nature of the alleged injury or injuries; i. The dates of all alleged injuries; j. If applicable, the date of death of the Viagra user; k. Which causes of action in the Master Complaint Plaintiff(s) adopts (including whether any Plaintiff(s) is asserting a claim for loss of consortium, survival, or wrongful death), which Plaintiff(s) may indicate by checking the applicable box on the Short Form Complaint; l. Any additional legal counts, Defendants and supporting allegations; and m. Whether Plaintiff(s) demands a jury trial. 10. Timing and Effect of Filing Short Form Complaints. a. Complaints Filed or Transferred Before Date of Master Complaint. Any Plaintiff who filed (or files) a Complaint in MDL No. 2691 or had (or has) a Complaint transferred to this MDL before the date on which the PSC files the Master Complaint must file a Short Form Complaint in his or her case within 60 days of the date on which the PSC files the Master Complaint. For purposes of statutes of limitations and statues of repose, any such Plaintiff shall be deemed to have filed his or her Complaint as of the date he or she filed his or her original Case 3:16-md-02691-RS Document 91 Filed 08/10/16 Page 3 of 6Case 3:16-cv-05 5-RS Document 11-2 Filed 10/21/16 Page 4 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 3:16-md-02691-RS PROCEDURES FOR DIRECT FILING, MASTER PLEADINGS, AND SERVICE OF PROCESS Complaint and not the date of the Master Complaint or the date he or she filed his or her Short Form Complaint. b. Complaints Filed On or After Date of Master Complaint. Any Plaintiff who files a Complaint directly in MDL No. 2691 on or after the date on which the PSC files the Master Complaint must file a Short Form Complaint. For purposes of statutes of limitations and statues of repose, any such Plaintiff shall be deemed to have filed his or her Complaint as of the date he or she filed his or her Short Form Complaint and not the date of the Master Complaint. c. Complaints Transferred to MDL On or After Date of Master Complaint. Any Plaintiff who files a Complaint that is transferred to MDL No. 2691 on or after the date on which the PSC files the Master Complaint must file a Short Form Complaint within 60 days of the date of transfer (which shall be the date this Court posts the Transfer Order on its docket). For purposes of statutes of limitations and statues of repose, any such Plaintiff shall be deemed to have filed his or her Complaint as of the date he or she filed his or her original Complaint in a different judicial district and not the date of the Master Complaint or the date he or she filed his or her Short Form Complaint. d. Amended Short Form Complaints. Nothing in this order shall limit Plaintiffs’ right to seek leave of court to amend a Short Form Complaint as provided in the Federal Rules of Civil Procedure. Further, Plaintiffs may file an amended Short Form Complaint without leave of court to assert any Loss of Consortium claims. Plaintiffs may also file an amended Short Form Complaint without leave of court to substitute or add an heir, estate, executor, successor, personal representative, or other proper party in the event that substitution is necessary, including but not limited to the death or incapacitation of the original named plaintiff; provided, however, that Defendant(s) shall not be deemed to have consented to any such amendments by virtue of this order and shall preserve the right to challenge whether the appropriate party brought the action in a timely matter. V. MASTER ANSWER 11. Deadline for Master Answer or Motion to Dismiss. Within sixty (60) days of the date of filing of the Master Complaint, Pfizer shall file a Master Answer to the Master Complaint Case 3:16-md-02691-RS Document 91 Filed 08/10/16 Page 4 of 6Case 3:16-cv-05 5-RS Document 11-2 Filed 10/21/16 Page 5 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- 3:16-md-02691-RS PROCEDURES FOR DIRECT FILING, MASTER PLEADINGS, AND SERVICE OF PROCESS or shall file, pursuant to the Federal Rules of Civil Procedure, a motion seeking dismissal, in whole or in part, of the Master Complaint. If Pfizer files a Motion to Dismiss the Master Complaint, and such Motion does not result in the dismissal of the Master Complaint in its entirety, Pfizer shall file a Master Answer within sixty (60) days of the date on which the Court issues a ruling as to Pfizer’s Motion to Dismiss, provided that the Court does not grant the PSC leave to amend the Master Complaint. If the Court grants the PSC leave to amend the Master Complaint, the parties shall meet and confer in good faith regarding deadlines for the filing of an Amended Master Complaint and Pfizer’s response thereto. 12. Master Answer Deemed Adopted in All Cases. The Master Answer shall be deemed to be the Answer to all properly served Complaints, whether Short Form or otherwise, in any case now or in the future pending in MDL No. 2691, including those cases transferred to MDL No. 2691 pursuant to 28 U.S.C. § 1407, filed directly in MDL No. 2691 pursuant as authorized herein, or removed to this Court and included in MDL No. 2691. Pfizer is hereby relieved of the obligation to file any further Answer to any Complaint not yet answered and/or any Complaint in a case subsequently transferred to or consolidated with MDL No. 2691, unless otherwise ordered by this Court. For cases in MDL No. 2691 that do not utilize the Master Complaint, the Master Answer will be deemed the answer to those allegations that correspond to the allegations of the Master Complaint, and will be deemed a denial of any allegations not contained in the Master Complaint. 13. Master Answer Without Prejudice to Individual Motions to Dismiss. The adoption of the Master Answer in every case is without prejudice to Pfizer later moving to dismiss certain counts alleged in the Master Complaint (at the appropriate time in any individual Plaintiff’s action), asserting any affirmative defenses, filing an Amended Answer to address specifically any individual Complaints described below, or otherwise challenging the sufficiency of any claim or cause of action in any Complaint under the applicable state’s law, including cases that may be selected for inclusion in a discovery pool or bellwether trial pool. Any proposed Order submitted to this Court for a process of selecting cases for inclusion in a discovery pool or bellwether trial pool must include a proposed procedure for the filing of dispositive motions applicable to those Case 3:16-md-02691-RS Document 91 Filed 08/10/16 Page 5 of 6Case 3:16-cv-05 5-RS Document 11-2 Filed 10/21/16 Page 6 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 3:16-md-02691-RS PROCEDURES FOR DIRECT FILING, MASTER PLEADINGS, AND SERVICE OF PROCESS cases. Furthermore, by agreeing to the procedures for filing the Master Complaint and Short Form Complaints, Pfizer has not agreed to or admitted the allegations set forth in those documents, nor has Pfizer conceded or waived its right to dispute the legal validity of the claims alleged therein. 14. Voluntary Dismissals. As set forth herein, after the Master Answer has been filed in MDL No. 2691, it will be deemed adopted in every case. As a result, following the filing of the Master Answer, any Plaintiff who wishes to voluntarily dismiss any case filed in or transferred to MDL No. 2691 must comply with Federal Rule of Civil Procedure 41(a)(1)(A)(ii). VI. SERVICE OF PROCESS AS TO PFIZER. 15. Service of Process by Mail on Pfizer’s Registered Agent. Without waiver of any defenses, Pfizer agrees that Plaintiffs may effectuate service of process pursuant to the provisions of Federal Rule of Civil Procedure 4 by sending a copy of the Summons and Complaint by certified mail to Pfizer’s registered agent for service of process at the following address: The Corporation Trust Company, 1209 Orange Street, Wilmington, DE 19801. Service shall be deemed effective on the day that the Summons and Complaint are sent to Pfizer as set forth above. Plaintiffs shall be responsible for filing a return of service with the Court. 16. Certain Other Methods of Service Not Sufficient. General mailing to Pfizer or its counsel (except as provided above) or use of other methods of transmission (e.g., electronic transmission, Federal Express, or DHL) to Pfizer or its counsel will not be sufficient to effectuate service. This Order does not prevent any Plaintiff from effectuating service pursuant to any other method authorized under the Federal Rules of Civil Procedure. IT IS SO ORDERED. Dated: ____________________________________ THE HONORABLE RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 8/10/16 Case 3:16-md-02691-RS Document 91 Filed 08/10/16 Page 6 of 6Case 3:16-cv-05 5-RS Document 11-2 Filed 10/21/16 Page 7 of 7 [Proposed] Order Granting Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey M. Davidson (Bar No. 248620) COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, California 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Email: jdavidson@cov.com Attorney for Defendant Eli Lilly and Company UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION WILLIAM TISSAIR, Plaintiff, v. PFIZER, INC. and ELI LILLY AND COMPANY, Defendants. Civil Case No.: 3:16-cv-05265-RS [PROPOSED] ORDER GRANTING DEFENDANT ELI LILLY AND COMPANY’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Date: December 14, 2016 Time: 2:30 p.m. Place: Courtroom 3 - 17th Floor Judge: Honorable Richard Seeborg Case 3:16-cv-05265-RS Document 11-3 Filed 10/21/16 Page 1 of 2 [Proposed] Order Granting Defendant Eli Lilly and Company’s Motion To Dismiss Civil Case No. 3:16-cv-05265-RS 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Eli Lilly and Company’s Motion to Dismiss For Lack of Personal Jurisdiction came on for hearing on December 14, 2016. Having considered all papers filed in support of and in opposition to the Motion, oral argument of counsel, and all other pleadings and papers on file herein, the Court rules as follows: Good cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. Defendant Eli Lilly and Company’s Motion to Dismiss is GRANTED; and 2. All claims for relief against Defendant Eli Lilly and Company in the above-captioned matters are hereby DISMISSED with prejudice. Dated: _____________________ By:___________________________________ The Honorable Richard Seeborg United States District Court Judge Case 3:16-cv-05265-RS Document 11-3 Filed 10/21/16 Page 2 of 2