Wilder et al v. Johnson & Johnson et al

MOTION to Dismiss for Lack of Jurisdiction and Improper Venue

D.N.J.March 1, 2017

8039589 v1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRENDA WILDER, as the Surviving Mother of Debbie Wilder and as Anticipated Administrator and Personal Representative of the Estate of Debbie Wilder, et al., Plaintiffs, vs. JOHNSON & JOHNSON, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:17-cv-00199 Hon. Rudolph Contreras DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR LACK OF _____________PERSONAL JURISDICTION AND IMPROPER VENUE_____________ Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively, the “Johnson & Johnson Defendants”), file this Motion to Dismiss Plaintiffs’ Complaint for Lack of Personal Jurisdiction and Improper Venue, and state as follows: 1. The Johnson & Johnson Defendants request that this Court dismiss Plaintiffs’ claims for lack of personal jurisdiction. FED. R. CIV. P. 12(b)(2). Alternatively, the Johnson & Johnson Defendants request that this Court dismiss Plaintiffs’ claims for improper venue. FED. R. CIV. P. 12(b)(3). 2. As set forth in detail in the accompanying memorandum in support of this motion, this Court does not have personal jurisdiction over Plaintiffs’ claims against the Johnson & Johnson Defendants, and allowing Plaintiffs to prosecute their claims against the Johnson & Johnson Defendants in the District of Columbia will violate the Johnson & Johnson Defendants’ due process rights. Consequently, Plaintiffs’ claims should be dismissed pursuant to FED. R. CIV. P. 12(b)(2). See Daimler AG v. Bauman, 134 S. Ct. 746, 751–54 (2014); Goodyear Dunlop Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 1 of 25 2 8039589 v1 Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 319 (1945); Norfolk S. Ry. Co. v. Dolan, SC95514, 2017 WL 770977 at *8, 12-13 (Mo. February 28, 2017); In re: Bard IVC Filters Products Liab. Lit., No. 15-2641, 2016 WL 6393596, at *4-5 (D. Ariz. Oct. 28, 2016); Addelson v. Sanofi S.A., No. 4:16-cv-01277- ERW, 2016 WL 6216124, *3-4 (E.D. Mo. Oct. 25, 2016); Alkanani v. Aegis Defense Servs., LLC, 976 F. Supp. 2d 13, 22 (D.D.C. 2014); Locke v. Ethicon Inc., No. 4:14–CV–2648, 2014 WL 5819824, at *1-3, 7-8 (S.D. Tex. Nov. 10, 2014); see also Allaham v. Naddaf, 635 F. App’x 32, 37 (3d Cir. 2015). In addition, Plaintiffs’ claims should be dismissed for improper venue because neither of the Johnson & Johnson Defendants resides in the District of Columbia and there is no factual basis to support an allegation that a substantial part of Plaintiffs’ claims occurred in the District of Columbia. 28 U.S.C. § 1391; Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 577 (2013). For these reasons, and those set forth in the accompanying memorandum in support, the Johnson & Johnson Defendants respectfully request that this Court dismiss Plaintiffs’ claims for lack of personal jurisdiction and/or dismiss Plaintiffs’ claims for improper venue. Dated: March 1, 2017 Respectfully submitted, SHOOK, HARDY & BACON, L.L.P. /s/ Michelle R. Mangrum Michelle R. Mangrum (Bar No. 473634) 1155 F Street, N.W., Suite 200 Washington, DC 20004 Telephone: (202) 783-8400 Facsimile: (202) 783-4211 mmangrum@shb.com Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 2 of 25 3 8039589 v1 CERTIFICATE OF SERVICE I hereby certify that on March, 1, 2017, a true and accurate copy of the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system, which sent notification of such filing to all counsel of record. I further certify that on March 1, 2017, a true and accurate copy of the foregoing document was served by U.S. First Class Mail to the following: Michelle A. Parfitt James F. Green Patrick K. Lyons ASHCRAFT & GEREL, LLP 4900 Seminary Rd., Suite 650 Alexandria, VA 22311 Telephone: (703) 931-5500 Email: mparfitt@ashcraftlaw.com Email: jgreen@ashcraftlaw.com Email: plyons@ashcraftlaw.com Attorneys for Plaintiffs Angela D. Hart-Edwards GORDON & REES, LLP 1300 I Street, NW, Suite 825 Washington, D.C. 20005 Telephone: (202) 372-9076 Email: ahartedwards@gordonrees.com Attorneys for Defendant Imerys Talc America f/k/a Luzenac America, Inc. I further certify that on March 1, 2017, a true and accurate copy of the foregoing was served by U.S. First Class Mail, postage prepaid, to the following: Personal Care Products Council Thomas Myers, Registered Agent 1620 L Street, NW, Suite 1200 Washington, DC 20036 Defendant /s/ Michelle R. Mangrum Attorney for Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 3 of 25 8039568 v2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRENDA WILDER, as the Surviving Mother of Debbie Wilder and as Anticipated Administrator and Personal Representative of the Estate of Debbie Wilder, et al., Plaintiffs, vs. JOHNSON & JOHNSON, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:17-cv-00199 Hon. Rudolph Contreras DEFENDANTS JOHNSON & JOHNSON AND JOHNSON & JOHNSON CONSUMER INC.’S MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. (collectively, the “Johnson & Johnson Defendants”), file this Memorandum in Support of their Motion to Dismiss Plaintiffs’ Complaint for Lack of Personal Jurisdiction and Improper Venue, and state as follows: SUMMARY OF ARGUMENT Plaintiffs’ claims should be dismissed from this Court for two important reasons. First, this Court lacks personal jurisdiction over the Johnson & Johnson Defendants because Plaintiffs and Decedent are residents of Georgia, and their claims do not arise from any purported contacts by the Johnson & Johnson Defendants with the District of Columbia. In regard to general jurisdiction, in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the United States Supreme Court recently emphasized that general jurisdiction may be exercised over a corporation only in those Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 4 of 25 2 8039568 v2 states where the corporation can be considered to be “at home.” Here, as Plaintiffs concede in their Complaint, both Johnson & Johnson Defendants are incorporated and maintain their principal places of business in New Jersey, and there are no other facts sufficient to render the Johnson & Johnson Defendants at home in the District of Columbia in order to support the exercise of general jurisdiction. Moreover, in regard to specific jurisdiction, the Complaint establishes that Plaintiffs’ claims do not arise from any in-District activities of the Johnson & Johnson Defendants. In sum, the Court’s exercise of personal jurisdiction over the Johnson & Johnson Defendants would violate due process (and the District of Columbia’s long-arm statute), and these claims should be dismissed. Plaintiffs’ claims should also be dismissed because venue is not proper in this District. Neither of the Johnson & Johnson Defendants resides in the District of Columbia and, as demonstrated by the Complaint, there is no basis on which Plaintiffs can contend that a “substantial part” of their claims occurred in the District of Columbia. Accordingly, the Court should dismiss Plaintiffs’ claims for improper venue. FACTUAL BACKGROUND 1. Plaintiffs admit that they and Decedent are not residents of the District of Columbia. Plaintiffs do not connect their claims, or Decedent’s alleged use of the products at issue, diagnosis, or death, to the District of Columbia. Plaintiffs do not allege that their claims arise from any of the Johnson & Johnson Defendants’ alleged contacts with the District of Columbia. (See Compl., ¶¶ 5-7, 22-25.) 2. Plaintiffs and Decedent are residents of Georgia. (See Compl., ¶¶ 5-7.) Plaintiffs allege that Decedent’s primary purchase and use of the products at issue occurred in Georgia. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 5 of 25 3 8039568 v2 (See Compl., ¶¶ 22-23.) Decedent was diagnosed with ovarian cancer and passed away in Georgia. (See Compl. ¶¶ 24-25.) 3. Further, the Johnson & Johnson Defendants are not citizens of, nor do they maintain principal places of business in, the District of Columbia. (See id. ¶¶ 8-9 (alleging that both Defendants are New Jersey corporations with principal places of business in New Jersey)). ARGUMENT I. PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION. This Court’s exercise of personal jurisdiction (either general or specific) over the Johnson & Johnson Defendants would violate the Johnson & Johnson Defendants’ due process rights. The exercise of personal jurisdiction would also violate the District of Columbia’s long-arm statute. Plaintiffs’ claims should be dismissed because this Court does not have personal jurisdiction over the Johnson & Johnson Defendants with regard to those claims. A. Plaintiffs Cannot Satisfy Their Burden to Demonstrate Jurisdiction. In the context of a motion to dismiss, it is the plaintiff that bears the burden of demonstrating that the court has jurisdiction over her complaint. See Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990); Shibeshi v. U.S., 932 F. Supp. 2d 1, 2 (D.D.C. 2013); see also Alkanani v. Aegis Defense Servs., LLC, 976 F. Supp. 2d 13, 22 (D.D.C. 2014); Dougherty v. U.S., 156 F. Supp. 3d 222, 229 (D.D.C. 2016). Part of satisfying this burden is demonstrating that any exercise of jurisdiction comports with the limits imposed by the Due Process Clause. Daimler AG v. Bauman, 134 S. Ct. 746 (2014); see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 319 (1945) (explaining that a State may authorize the exercise of personal jurisdiction only if maintenance of the suit does not offend “traditional notions of fair play and substantial justice”). Plaintiffs must also demonstrate that the exercise of jurisdiction Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 6 of 25 4 8039568 v2 comports with the relevant long-arm statute. Alkanani, 976 F. Supp. 2d at 24; see also Allaham v. Naddaf, 635 F. App’x 32, 37 (3d Cir. 2015) (explaining that “where the long-arm statute allows the exercise of personal jurisdiction to the full extent permitted by the Constitution, the standard for a federal court sitting in diversity” is the same as the due-process inquiry) (citing Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001)). B. The Exercise of General Jurisdiction Over the Johnson & Johnson Defendants Would Violate Due Process. The United States Supreme Court, in Daimler AG v. Bauman, recently reemphasized that general jurisdiction exists over a non-resident corporation only when its “affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State.” Daimler AG v. Bauman, 134 S. Ct. 746, 751–54 (2014) (citations omitted) (emphasis added); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (same). In determining whether a corporation can be considered to be “at home” in a particular forum, the “paradigm” considerations are the corporation’s place of incorporation and principal place of business. Daimler, 134 S. Ct. at 760 (explaining that “only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction”).1 Importantly, the general jurisdiction test is not satisfied in every State in which a corporation “engages in a substantial, continuous, and systematic course of business” because such a standard is “unacceptably grasping” and violates due process. Id. at 760–62 (emphasis added). As the Supreme Court put 1 In Daimler, the Supreme Court stated that it was not “foreclose[ing] the possibility” that in an “exceptional case,” a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that state. As an example of such an “exceptional case,” the Court cited Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), in which the defendant had left its usual principal place of business (the Philippines) due to the Japanese occupation during World War II, and had set up temporary quarters in Ohio. Daimler, 134 S. Ct. at 761 n. 19. There are no similar facts present in this case. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 7 of 25 5 8039568 v2 it, “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” Id. at 762 n.20. Courts in this District, applying Daimler, recognize this as well. See Alkanani, 976 F. Supp. 2d at 20, 29–30 (acknowledging that, post-Daimler, to support the exercise of general jurisdiction “the defendant’s contacts and affiliations with the forum must be so extensive, so constant, and so prevalent that they render the defendant essentially at home in the forum”). Although Plaintiffs do not expressly rely on general (versus specific) jurisdiction, Plaintiffs generally assert that the Johnson & Johnson Defendants “conducted continuous and systematic business in the District of Columbia” through the alleged retail of the products at issue. (Compl. ¶ 10.) Plaintiffs’ generalized allegations that the Johnson & Johnson Defendants have “conducted business” in the District of Columbia as a result of the retail of Johnson & Johnson Consumer Inc.’s products in the District,2 even if true, are not sufficient to support the exercise of general jurisdiction in the District, or, as Plaintiffs impliedly suggest, in all States of the United States. See Daimler, 134 S. Ct. at 762 n.20 (explaining that “[a] corporation that operates in many places can scarcely be deemed at home in all of them”). This is exactly the sort of “unacceptably grasping” general jurisdictional standard that the Supreme Court criticized in Daimler and that is now roundly rejected in federal and state courts across the country. Daimler, 2 Johnson & Johnson denies that it manufactured or marketed JOHNSON’S® Baby Powder and SHOWER TO SHOWER®. Johnson & Johnson Consumer Inc. admits that it manufactured and marketed the products at issue during relevant time periods. Johnson & Johnson Consumer Inc. also does not dispute that its products are sold by retailers nationwide. But, similar to the facts in Daimler, the Johnson & Johnson Defendants are not incorporated in the District of Columbia and they do not maintain a principal place of business in the District of Columbia. Daimler AG v. Bauman, 134 S. Ct. 746, 751–54, 760–62 (2014). And, the mere fact that Johnson & Johnson Consumer Inc.’s products are sold by retailers in the District of Columbia does not render the Johnson & Johnson Defendants “at home” in the District of Columbia (or, for that matter, in every jurisdiction in the United States). See id.; see also affidavit of Lacey Elberg, attached as Ex. A and affidavit of Rosa Son, attached as Ex. B. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 8 of 25 6 8039568 v2 134 S. Ct. at 760; see, e.g., Sonera Holding B.V. v. Cukurova Holding A.S, 750 F.3d 221, 223 (2d Cir. 2014) (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”) (emphasis added); Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. Aug. 21, 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”) (citing Daimler); Norfolk Southern Railway Company v. Dolan, SC95514, at 8 (Missouri Supreme Court, February 28, 2017) (concluding that the “Missouri contacts are insufficient to establish general jurisdiction over Norfolk in Missouri under the principles set out in Daimler” where “Norfolk own[ed] or operates some 400 miles of track, generate[d] approximately $232 million in revenue, and employ[ed] some 590 people in Missouri” and had a registered agent in Missouri but this activity was “a tiny proportion of Norfolk’s entire nationwide business.”); In re: Bard IVC Filters Products Liab. Lit., No. 15-2641, 2016 WL 6393596, at *4-5 (D. Ariz. Oct. 28, 2016) (finding that general jurisdiction was lacking because “Plaintiffs identif[ied] no Missouri-related contacts by Defendants other than sales and marketing efforts, and the Supreme Court has held that such contacts are not sufficient for general jurisdiction . . . Defendants [were] not subject to general jurisdiction in Missouri. Their marketing efforts and profits from the State are not sufficient, and Plaintiffs cannot show that they otherwise operate so continuously and systematically in Missouri as to render them ‘at home’ there.”); Addelson v. Sanofi S.A., No. 4:16-cv-01277-ERW, 2016 WL 6216124, *3-4 (E.D. Mo. Oct. 25, 2016) (noting “plaintiff's injury must be connected to defendant's contacts with the forum state” and finding no specific jurisdiction where a non- Missouri plaintiff failed to allege any facts connecting the conduct of the defendant in Missouri to any of the non-Missouri plaintiff’s claims); In re Zofran (Ondansetron) Prods. Liab. Litig., Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 9 of 25 7 8039568 v2 MDL No. 1:15-cv-md-2657-FDS, 2016 WL 2349105, at *2, 5 (D. Mass. May 4, 2016) (holding that Missouri courts lacked personal jurisdiction (general or specific) over claims of non- Missouri plaintiffs and dismissing non-Missouri plaintiffs’ claims); Beard v. Smithkline Beecham Corp., No. 4:15-CV-1833-RLW, 2016 WL 1746113, at *2 (E.D. Mo. May 3, 2016) (holding that Missouri court lacked personal jurisdiction over Defendant because “[s]imply marketing and selling a product in a state does not make the defendant’s affiliations with the state so “continuous and systematic as to render them essentially at home in the forum state.” . . . .); Keeley v. Pfizer, No. 4:15CV00583 ERW, 2015 WL 3999488, at *2-4, (E.D. Mo. July 1, 2015) (holding that Missouri court lacked general jurisdiction over Pfizer because “simply marketing and selling a product in a state” does not render a corporate defendant “at home” in that state); Neeley v. Wyeth LLC, No. 4:ll–cv–00325–JAR2015, 2015 WL 1456984, at *3 (E.D. Mo. Mar. 30, 2015) (finding that Missouri courts lacked general jurisdiction over generic drug manufacturer; explaining that “similar to Daimler, if the Generic Defendants’ activities sufficed to allow adjudication of this case in Missouri, the same would presumably be true in many other states”) (emphasis added); Gen. Elec. Co. v. Univ. of Virginia 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 render [it] essentially at home in the forum State,’” and dismissing case against non-resident defendant for lack of personal jurisdiction because not “at home” in Wisconsin.); Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381, 388 (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 operates restaurants was specifically rejected in Daimler”); Hill v. Capital One Bank (USA), N.A., No. 14-cv-6236, 2015 WL 468878, at *5 (N.D. Ill. Feb. 3, 2015) Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 10 of 25 8 8039568 v2 (stating, in accord with Daimler, that “general jurisdiction analysis should focus on a corporation’s true locus of corporate activity”); Locke v. Ethicon Inc., No. 4:14–CV–2648, 2014 WL 5819824 (S.D. Tex. Nov. 10, 2014) (holding, in accord with Daimler, that revenue from corporation’s product sales in Texas did not render Johnson & Johnson subject to general jurisdiction in Texas and that court lacked personal jurisdiction over Johnson & Johnson for claims brought by out of state plaintiffs who alleged injury in their home states); Flynn v. Hovensa, LLC, 2014 WL 3375238, at *3-5 (W.D. Pa. July 3, 2014) (concluding that defendant’s ownership of convenience stores within the forum did not render the company “at home” in the state, and explaining that even if company had “engaged in substantial business in Pennsylvania, the Court could not exercise [general] personal jurisdiction over it”) (emphasis added); Eaves v. Pirelli Tire, LLC, No. 13–1271–SAC, 2014 WL 1883791, at *9 (D. Kan. May 12, 2014) (holding that “Plaintiff’s stream of commerce arguments are to no avail for general jurisdiction”) (unpublished); Alkanani, 976 F. Supp. 2d 13, 20, 29-30 (D.D.C. 2014) (acknowledging that, post-Daimler, to support the exercise of general jurisdiction “the defendant’s contacts and affiliations with the forum must be so extensive, so constant, and so prevalent that they render the defendant essentially at home in the forum”); Lexion Medical, LLC v. SurgiQuest, Inc., No. 13–2453, 8 F.Supp.3d 1122, 1127-28 (D. Minn. Mar. 26, 2014) (stating that although defendant had “repeatedly transacted business” in State, “a corporation’s “continuous activity of some sorts within a state” is not sufficient to support general jurisdiction) (unpublished); Teague v. Johnson & Johnson, No. CJ-13-305, 2014 WL 5343318 (Trial Order) (Ok. Dist. Ct. July 2, 2014) (holding, in context of medical device case, that personal jurisdiction was lacking as to the non- Oklahoma plaintiffs’ claim for injuries which plaintiffs alleged occurred in their home states); Evans v. Johnson & Johnson, 2014 WL 7342404, at * (S.D. Tex. Dec. 23, 2014) (finding that Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 11 of 25 9 8039568 v2 court lacked jurisdiction over Johnson & Johnson for claims brought by non-Texas plaintiffs who alleged injury in their respective states of residency, and emphasizing that if “the court were to consider the contacts cited by the plaintiffs as sufficient to render Texas ‘home’ for Defendants, then the same global reach would presumably be available in every other State in which [Defendants’] sales are sizable”) (citation omitted); NExTT Solutions, LLC v. XOS Technologies, Inc., 2014 WL 6674619, at *4 (N.D. Ind. Nov. 24, 2014) (stating that “[a]fter Goodyear was decided in 2011, courts in [the Seventh Circuit] have rarely found general jurisdiction to exist,” and further explaining that after Daimler “continuous and systematic” business contacts “with a forum state are no longer sufficient to establish general jurisdiction”); In re Plavix Related Cases, No. 2012L5688, 2014 WL 3928240, at *5–8 (Trial Order) (Circ. Ct. Ill. Aug. 11, 2014) (“Plaintiff’s jurisdictional framework, taken to its logical conclusion, would produce exactly that forbidden result: national general jurisdiction in every state in which Defendants are doing business and generating sales revenue. Daimler makes clear that such an approach to general jurisdiction does not comport with due process.”). As conceded by Plaintiffs, neither Johnson & Johnson Defendant is a citizen of, nor maintains a principal place of business in, the District of Columbia. Plaintiffs’ generic allegations pertaining to the retailing of Johnson & Johnson Consumer Inc.’s products in the District of Columbia (as well as every state in the nation) are insufficient to satisfy the limitations imposed by the Due Process Clause. Because the exercise of general jurisdiction over the Johnson & Johnson Defendants would violate due process, Plaintiffs’ claims should be dismissed for lack of personal jurisdiction. See Daimler, 134 S. Ct. at 751–54, 760–62.3 3 This is because, as explained below, the Court also lacks specific jurisdiction. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 12 of 25 10 8039568 v2 C. The Exercise of Specific Jurisdiction Over the Johnson & Johnson Defendants Would Also Violate Due Process. The inquiry regarding specific jurisdiction differs from the general jurisdiction inquiry in that the focus is on whether the in-state activities of the corporate defendant “gave rise to the liabilities sued on.” Daimler, 134 S. Ct. at 760 (emphasis added) (citation omitted). In articulating the concept of specific jurisdiction, the Supreme Court in Daimler explained that “‘the commission of some single or occasional acts of the corporate agent in a state’ may sometimes be enough to subject the corporation to jurisdiction . . . with respect to suits relating to that in-state activity.” Daimler, 134 S. Ct. at 754 (citing Int’l Shoe v. Washington, 326 U.S. 310, 318 (1945)); see also Alkanani, 976 F. Supp. 2d 13, 22-23 (explaining that “specific jurisdiction requires a nexus between a foreign corporation’s particular contact with the forum state and the claim that the plaintiff asserts”) (emphasis added); see also Allaham, 635 F. App’x at 39 (explaining that to establish specific jurisdiction a plaintiff must demonstrate, among other things, that the litigation “‘arise[s] out of or relate[s] to’” activities by the defendant that were purposefully directed at the forum) (quoting O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007)). And, just as with general jurisdiction, the exercise of specific jurisdiction requires that the contacts at issue be significant enough so as not to “offend traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S at 316; see also Allaham, 635 F. App’x at 39 (same). As noted above, even accepting as true the facts pleaded by Plaintiffs, there is no basis for the exercise of specific jurisdiction. Plaintiffs admit that they and Decedent are residents of Georgia. (See Compl., ¶¶ 5-7.) Plaintiffs’ Complaint alleges Decedent used and purchased the products in Georgia, was diagnosed with ovarian cancer in Georgia, and passed away in Georgia. See id. at ¶¶ 22-25. Plaintiffs make no allegations connecting their claims, or Decedent’s alleged Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 13 of 25 11 8039568 v2 use of the products or diagnosis, to the District of Columbia, and Plaintiffs do not allege that their claims arise from any of the Johnson & Johnson Defendants purported contacts with the District of Columbia. See id. Given these undisputed facts, any alleged in-District activities of the Johnson & Johnson Defendants, in relationship to Plaintiffs’ claims, could not have “[given] rise to the liabilities sued on.” Daimler, 134 S. Ct. at 760 (emphasis added); see, e.g., Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st Cir. 1984) (holding that New Hampshire court lacked specific jurisdiction over the plaintiff’s claim for injuries from a drug “purchased and consumed in Massachusetts,” and rejecting argument that the court could rely on alleged unrelated sales of drug in New Hampshire because claim “did not arise from Lilly’s New Hampshire activities”); Norfolk Southern Railway Company, SC95514, at 12-13 (“Just because a company like Ford, for example, sells cars in Iowa and in California, does not mean there is jurisdiction in California for injuries that occurred in Iowa simply because Ford engages in the same “type” of activity – selling cars – in both states. Such an argument goes even further than the pre-Daimler approach to general jurisdiction that Daimler rejected as providing no authority for general jurisdiction over a company.”); Locke, 2014 WL 5819824, at *1-3, 7-8 (holding that court lacked personal jurisdiction over Johnson & Johnson for claims brought by out of state plaintiffs who alleged injury in their home states); Evans, 2014 WL 7342404, at *6 (finding that there were “no claims supporting specific jurisdiction” in regard to non-Texas plaintiffs who alleged injury in their respective states of residency) (citation omitted); In re Plavix Related Cases, 2014 WL 3928240, at *8–10 (holding that Illinois court lacked specific jurisdiction over Eli Lilly as to claims by non-Illinois plaintiffs who alleged injury in their home states, stating that there was no “causal or logical link between their claims and Defendants’ Illinois operations”) (emphasis added). Because the exercise of specific jurisdiction over the Johnson & Johnson Defendants would violate the Johnson & Johnson Defendants’ due process rights, Plaintiffs’ claims should be dismissed for lack of personal Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 14 of 25 12 8039568 v2 jurisdiction. D. The Exercise of Jurisdiction Over the Johnson & Johnson Defendants Would Also Exceed the Scope of the Long-Arm Statute. 4 Additionally, a plaintiff seeking to establish jurisdiction over a non-resident defendant must establish that the exercise of jurisdiction is consistent with the forum’s long-arm statute, D.C. Code § 13–423(a). See Alkanani, 976 F. Supp. 2d at 24 (citing FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1094–95 (D.C. Cir. 2008)). Here, the exercise of jurisdiction over the Johnson & Johnson Defendants as to Plaintiffs’ claims violates the plain terms of the long- arm statute, providing this Court with further reason to dismiss Plaintiffs’ Claims. See D.C. Code § 13–423(a). Plaintiffs have not articulated any particular prong of the different subsections of the District of Columbia’s long-arm statute on which they rely in bringing their claims in the District.5 Presumably, as indicated by the language included in their Complaint, Plaintiffs may 4 The Johnson & Johnson Defendants acknowledge that “District of Columbia courts have clarified that the Due Process Clause presents no additional hurdle for a plaintiff who can demonstrate that the defendant meets either the ‘transacting business’ test of D.C. Code § 13– 423(a)(1) or is ‘doing business’ in the District for the purpose of § 13–334(a).” Alkanani v. Aegis Defense Services, LLC, 976 F. Supp. 2d 13, 21–22 (D.D.C. 2014). “Thus, a D.C. court need only engage in a single analysis of the defendant's contacts with the District of Columbia under the standards established in the long-arm and service statutes because sufficient contacts under the D.C. Code and proper service is all that Due Process requires.” Id. The Johnson & Johnson Defendants provide a separate discussion of Due Process and the long-arm statue, recognizing that the inquiries are generally considered coextensive. 5 Section 13–423(a) of the D.C. Code extends personal jurisdiction over a nonresident defendant where the plaintiff's claim arises from the defendant's (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if [the defendant] regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; (5) having an interest in, using, or possessing real property in the District of Columbia; (6) contracting to insure or act as surety for or on any Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 15 of 25 13 8039568 v2 be attempting to rely on the “transacting business” subpart of the statute. See D.C. Code § 13- 423(a)(1). But regardless of which provision of the long arm statute on which Plaintiffs intend to rely, their claims do not fall within the grants of jurisdiction prescribed by the statute. First, as to the “transacting business” subpart of the long-arm statute, it is clear that Plaintiffs must show that their claim “aris[es] from” that alleged transaction of business in the District. See Alkanani, 976 F. Supp. 2d at 26 (citing D.C. Code § 13–423(a)); see also D.C. Code § 13–423(b). This “statutory nexus requirement is essential to an exercise of specific jurisdiction because the claim itself must have arisen from the business transacted in the District or there is no jurisdiction by the very terms of the long-arm statute.” See Alkanani, 976 F. Supp. 2d at 26–27 (citation and internal quotations omitted) (emphasis added). Here, Plaintiffs admit that their claims arise from Decedent’s alleged use of cosmetic products. Plaintiffs further admit that they and Decedent are residents of Georgia, that Decedent allegedly purchased and used the products in Georgia, and that Decedent was diagnosed with ovarian cancer and passed away in Georgia. Plaintiffs do not allege that their claims arise from any of the Johnson & Johnson Defendants’ purported activities within the District of Columbia Moreover, to the extent that Plaintiffs seek to rely on the tort provisions of the District of Columbia’s long-arm statute, that effort would fail as well. “The tort-related sub-sections provide for specific jurisdiction over a nonresident defendant only when the plaintiff’s claim involves tortious injury that occurs in the District of Columbia—not injury that occurs elsewhere.” Alkanani, 976 F. Supp. 2d at 27–28 (citing D.C. Code §§ 13–423(a)(3), (a)(4)) person, property, or risk, contract, obligation, or agreement located, executed, or to be performed within the District of Columbia at the time of contracting, unless the parties otherwise provide in writing; or (7) marital or parent and child relationship in the District of Columbia[.] See D.C. Code § 13–423; see also Alkanani, 976 F. Supp. 2d at 24 n.4. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 16 of 25 14 8039568 v2 (emphasis added); see also Lott v. Burning Tree Club, Inc., 516 F. Supp. 913, 916 (D.D.C. 1980) (explaining that § 13–423(a)(3) “clearly separates the act from the tortious injury and affords personal jurisdiction over non-residents only when both act and injury occur in the District”) (citation omitted). Thus, Plaintiffs cannot demonstrate compliance with the tort provisions of the long-arm statute. In sum, the exercise of jurisdiction over the Johnson & Johnson Defendants as to Plaintiffs’ claims violates due process and the District of Columbia’s long-arm statute. Accordingly, this Court should dismiss Plaintiffs’ claims for lack of personal jurisdiction. II. PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED FOR IMPROPER VENUE. Plaintiffs’ claims should also be dismissed for improper venue because neither of the Johnson & Johnson Defendants resides in the District of Columbia and there is no basis on which Plaintiffs can contend that a substantial part of their claims occurred in this District. Venue analysis is generally governed by 28 U.S.C. § 1391. Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 577 (2013). Section 1391 provides that “[a] civil action may be brought in—(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.” Id. (citing 28 U.S.C. § 1391(b)). When venue is challenged, the court must determine whether the case falls within one of the three categories set out in section 1391(b), and “if it does not, venue is improper, and the case must be dismissed or transferred under § 1406(a).” Id. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 17 of 25 15 8039568 v2 (emphasis added). For purposes of section 1391, an entity “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28 U.S.C. § 1391(c)(2). And, in regard to evaluating whether a substantial part of the events or omissions giving rise to the claim occurred in the chosen venue, plaintiff bears the burden “to allege sufficient facts to indicate ‘a substantial part of the events or omissions giving rise to the claim occurred’ in the chosen district.” Delta Sigma Theta Sorority Inc. v. Bivins, 20 F. Supp. 3d 207, 212 (D.D.C. 2014). “To determine where a claim arose, a court should engage in a common sense appraisal of events having operating significance in the case.” Bullock v. Washington Metropolitan Area Transit Authority, 943 F. Supp. 2d 52, 57 (D.D.C. 2013) (citations omitted). Venue is proper if the “activities that transpired in the forum district were not insubstantial in relation to the totality of the events.” Id. (citations omitted). Importantly, the relevant “activities . . . must be the ones out of which the plaintiff’s claims arise; they cannot be tangential, such as the general business connections the defendant may have in the judicial district.” Id. (citations omitted); see also Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005) (observing that “for venue to be proper, significant events or omissions material to the plaintiff’s claim must have occurred in the district in question” (emphasis added)). As discussed above, the Johnson & Johnson Defendants are not subject to the personal jurisdiction of the District of Columbia courts and, as such, they cannot be considered to “reside” in this District for purposes of evaluating venue under section 1391. 28 U.S.C. § 1391. Moreover, because Plaintiffs admit that they reside outside the District of Columbia, and because Plaintiffs’ allegations do not connect their claims, or Decedent’s alleged use of the products or Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 18 of 25 16 8039568 v2 diagnosis and death, to the District of Columbia, there is no basis on which Plaintiffs can contend that “a substantial part of the events or omissions giving rise to the claim occurred” in this District. 28 U.S.C. § 1391(b)(2); see also Bullock, 943 F. Supp. 2d at 57 (emphasizing that the plaintiff’s alleged injuries occurred outside of the forum, and granting transfer). Accordingly, the Court should dismiss Plaintiffs’ claims for improper venue. See 28 U.S.C. § 1406(a). CONCLUSION The Johnson & Johnson Defendants respectfully request that this Court dismiss Plaintiffs’ claims against the Johnson & Johnson Defendants because the Court does not have personal jurisdiction over the Johnson & Johnson Defendants in this case and because venue is improper in this District. Dated: March 1, 2017 Respectfully submitted, SHOOK, HARDY & BACON, L.L.P. /s/ Michelle R. Mangrum Michelle R. Mangrum (Bar No. 473634) 1155 F Street, N.W., Suite 200 Washington, D.C. 20004 Telephone: (202) 783-8400 Facsimile: (202) 783-4211 mmangrum@shb.com Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 19 of 25 17 8039568 v2 CERTIFICATE OF SERVICE I hereby certify that on March, 1, 2017, a true and accurate copy of the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system, which sent notification of such filing to all counsel of record. I further certify that on March 1, 2017, a true and accurate copy of the foregoing document was served by U.S. First Class Mail to the following: Michelle A. Parfitt James F. Green Patrick K. Lyons ASHCRAFT & GEREL, LLP 4900 Seminary Rd., Suite 650 Alexandria, VA 22311 Telephone: (703) 931-5500 Email: mparfitt@ashcraftlaw.com Email: jgreen@ashcraftlaw.com Email: plyons@ashcraftlaw.com Attorneys for Plaintiffs Angela D. Hart-Edwards GORDON & REES, LLP 1300 I Street, NW, Suite 825 Washington, D.C. 20005 Telephone: (202) 372-9076 Email: ahartedwards@gordonrees.com Attorneys for Defendant Imerys Talc America f/k/a Luzenac America, Inc. I further certify that on March 1, 2017, a true and accurate copy of the foregoing was served by U.S. First Class Mail, postage prepaid, to the following: Personal Care Products Council Thomas Myers, Registered Agent 1620 L Street, NW, Suite 1200 Washington, DC 20036 Defendant /s/ Michelle R. Mangrum Attorney for Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 20 of 25 Exhibit A Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 21 of 25 The State o y Commis on Expires: Further Affiant sayeth not. Lacey Elberg SUBSCRIBED AND SWORN TO before me this 69\4 day of Dec er, 201(:' ic In and F AFFIDAVIT OF LACEY ELBERG BEFORE ME, the undersigned authority, personally appeared the affiant named below, who being by me duly sworn, deposed as follows: 1. My name is Lacey Elberg. I am employed by Johnson & Johnson and am an Assistant Secretary of Johnson & Johnson. I am of sound mind, capable of making this affidavit and personally acquainted with the facts herein stated. 2. Johnson & Johnson is a New Jersey corporation with its principal place of business in New Jersey. 3. Johnson & Johnson is not a resident of District of Columbia. 4. Johnson & Johnson does not own, operate, or lease any facilities in District of Columbia. 5. Johnson & Johnson is a holding company and, as a holding company, Johnson & Johnson does not design, manufacture, or market JOHNSON'S® Baby Powder and SHOWER TO SHOWER®. 6. Furthermore, as a holding company, Johnson & Johnson does not sell, distribute, or introduce into interstate commerce JOHNSON'S° Baby Powder and SHOWER TO SHOWER®. ' LINDA E. KING Commission* 2038027 Notary Public, State of New Jersey My Commission Expires April 09, 2018 1 Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 22 of 25 Exhibit B Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 23 of 25 AFFIDAVIT OF ROSA SON BEFORE ME, the undersigned authority, personally appeared the affiant named below, who being by me duly sworn, deposed as follows: 1. My name is Rosa Son. I am Assistant Secretary of Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. (collectively referred to as Johnson & Johnson Consumer Inc.). I am of sound mind, capable of making this affidavit and personally acquainted with the facts herein stated. The foregoing statements are true and correct and based on my personal knowledge. 2. Johnson & Johnson Consumer Inc. is a New Jersey corporation with its principal place of business in New Jersey. 3. Johnson & Johnson Consumer Inc. is a wholly owned subsidiary of Johnson & Johnson. 4. Johnson & Johnson Consumer Inc. is not a resident of the District of Columbia. 5. Johnson & Johnson Consumer Inc. does not own, operate, or lease any facilities in the District of Columbia, and Johnson & Johnson Consumer Inc. does not maintain any records in the District of Columbia. 6. None of Johnson & Johnson Consumer Inc.'s officers reside in the District of Columbia. 7. Johnson & Johnson Consumer Inc. does not manufacture, research, develop, design, or test JOHNSON'S® Baby Powder and SHOWER TO SHOWER® in the District of Columbia. Further Affiant sayeth not. Rosa Son 1 SAAIAN 0SO WAY POVIC CR 10 OSE1 ttiComaisionrOtealtV Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 24 of 25 it SUBSCRIBED AND SWORN TO before me this I 34 day of December, 2016. Not ly OULLInC ; Public In 4,n,c1 or Th State of ( A) My Commission Expires: AO ik-tit ROTARY PUBIE, tiVa JERSEY sstan wres zorsis Comna 2 501907 v3 Case 1:17-cv-00199-RC Document 11 Filed 03/01/17 Page 25 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRENDA WILDER, as the Surviving Mother of Debbie Wilder and as Anticipated Administrator and Personal Representative of the Estate of Debbie Wilder, et al., Plaintiffs, vs. JOHNSON & JOHNSON, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:17-cv-00199 Hon. Rudolph Contreras ORDER This matter came before the Court on Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.’s Motion to Dismiss Plaintiffs’ Complaint for Lack of Personal Jurisdiction and Improper Venue. The Court, having considered the motion, any responses, and the arguments of counsel, is of the opinion that the motion is meritorious and should be granted. It is therefore, ORDERED that Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.’s Motion to Dismiss Plaintiffs’ Complaint for Lack of Personal Jurisdiction and Improper Venue is granted. It is further ORDERED that Plaintiffs’ claims are dismissed in their entirety. ____________________________________ Hon. Rudolph Contreras United States District Judge Case 1:17-cv-00199-RC Document 11-1 Filed 03/01/17 Page 1 of 1