Kostedt v. C. R. Bard, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

)

DEBORAH KOSTEDT, et al., )

)

Plaintiff, ) No. 4:21-CV-671 RLW

)

v. )

)

C.R. BARD, INC. et al, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendant C.R. Bard, Inc.’s Motion to Dismiss

Plaintiffs’ Petition (ECF No. 8), asserting this Court does not have personal jurisdiction over

Defendant C.R. Bard, Inc. (“Bard”). This matter is fully briefed and ready for disposition. For the

reasons stated herein, the Court grants Bard’s Motion to Dismiss Plaintiffs’ Petition.

LEGAL STANDARD

To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a

prima facie showing of personal jurisdiction by pleading facts sufficient to support a “reasonable

inference that the defendant[ ] can be subjected to jurisdiction within the state.” K-V Pharm. Co.

v. J. Uriach & CIA, S.A, 648 F.3d 588, 59-92 (8th Cir. 2011); see also Viasystems, Inc. v. EBM—

Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 592 (8th Cir. 2011); Miller v. Nippon Carbon

Co., Ltd., 528 F.3d 1087, 1090 (8th Cir. 2008); Dever v. Hentzen Coatings, 380 F.3d 1070, 1072

(8th Cir. 2004); Epps v. Siewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir. 2003). A plaintiff’s

prima facie showing “must be tested, not by the pleadings alone, but by affidavits and exhibits

supporting or opposing the motion.” K-V Pharm., 648 F.3d at 592 (quoting Dever, 380 F.3d at

1072-73). The Court views the evidence in a light most favorable to the plaintiff and resolves

factual conflicts in the plaintiff’s favor; however, plaintiff carries the burden of proof and that

burden does not shift to defendants. Epps, 327 F.3d at 647; Wallach v. Whetstone Partners, LLC,

No. 4:16 CV 450 CDP, 2016 WL 3997080, at *1 (E.D. Mo. July 26, 2016); Fastpath, Inc. v. Arbela

Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014). “When personal jurisdiction is contested, ‘it is

the plaintiff who must shoulder the burden of establishing that defendant's contacts with the forum

state were sufficient.’” Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231 (Mo.

2010) (quoting Angoff v. Marion A. Allen, Inc., 39 S.W.3d 483, 486 (Mo. banc 2001)).

BACKGROUND

This case is a personal injury action involving 83 unrelated Plaintiffs, who are citizens of

29 states, and allege they suffered separate injuries from implantation with various pelvic mesh

implants designed and manufactured by Bard and the other defendants. This case was originally

filed in the Twenty-Second Judicial Circuit Court, St. Louis, Missouri, on January 25, 2019.

(Petition, ECF No. 4). More than two years later, Bard was served with the Petition on May 12,

2021. (Notice of Removal, ECF No. 1, ¶ 2). Bard removed this action to federal court on June

11, 2021, under 28 U.S.C. §1332(a), because complete diversity of citizenship exists among all

properly joined and served parties. (Notice of Removal, ECF No. 1)

Out of all of the Plaintiffs, only seven plaintiffs, Deborah Kostedt, Kimberly Cook, Barbara

Doubt, Joy Goodell, Cathy Myers, Mary Alice Nielson, and Connie Stanton, are citizens of

Missouri. (Notice of Removal, ¶ 19; Pet., ¶¶ 23, 30, 37, 66, 68, 77). Bard filed a Motion to Dismiss

Plaintiffs’ Petition, asserting the Court lacked personal jurisdiction over Bard. (ECF No. 8).

Bard argues that this Court should dismiss this case for lack of personal jurisdiction over

Bard and because Plaintiffs failed to prosecute this case, particularly by delaying service on Bard

for over two years. The Court dismisses this action against Bard for lack of personal jurisdiction.1

DISCUSSION

A. General Jurisdiction

“A court may assert general jurisdiction over foreign (sister-state or foreign-country)

corporations to hear any and all claims against them when their affiliations with the State are so

‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, (2011); Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414, n. 9; (1984). “[O]nly a limited set of affiliations with

a forum will render a defendant amenable to all-purpose jurisdiction there.” Daimler AG v.

Bauman, 571 U.S. 117, 118, 137 (citing Goodyear, 564 U.S. at 923). “The paradigm all-purpose

forums for general jurisdiction are a corporation’s place of incorporation and principal place of

business.” Daimler, 571 U.S. at 118–19 (citing Goodyear, 564 U.S. at 923-24). A “corporation's

‘continuous activity of some sorts within a state is not enough to support the demand that the

corporation be amenable to suits unrelated to that activity.’” Daimler, 571 U.S. at 132 (quoting

Int'l Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)). The Supreme Court cautioned that the

exercise of due process does not “approve the exercise of general jurisdiction in every State in

which a corporation engages in a substantial, continuous, and systematic course of business.’”

Daimler, 571 U.S. at 119. “To ‘approve the exercise of general jurisdiction in every State in which

a corporation engages in a substantial, continuous, and systematic course of business,’ the Supreme

1 The Court does not reach the issue of whether Plaintiffs’ failure to serve Bard for two years

constitutes a failure to prosecute and necessitates dismissal of this action.

Court explained, ‘is unacceptably grasping.’” Mitchell v. Eli Lilly & Co., 159 F. Supp. 3d 967,

973 (E.D. Mo. 2016) (citing Daimler, 571 U.S. at 138 (quotation marks and citation omitted)).

Rather, “[o]nly in an ‘exceptional case’ will ‘a corporation's operations in a forum other than its

formal place of incorporation or principal place of business ... be so substantial and of such a nature

as to render the corporation at home in that State.’” Daimler, 571 U.S. at 139, n.19.

Plaintiffs argue that Bard’s “continued activity within the State of Missouri would render

[it] at home in the [S]tate of Missouri and in turn subject to the jurisdiction of their courts.” (ECF

No. 23 at 3). Plaintiffs rely on their claim that seven plaintiffs had implants of Defendants’ products

in Missouri. (ECF No. 23 at 3-4). Finally, Plaintiffs contend that the pelvic mesh implants of which

this lawsuit centers around were continuously and systematically sold and marketed within the

State of Missouri. (ECF No. 23 at 3-4).

Although Plaintiffs argue in their opposition that Bard is “at home” in Missouri, Plaintiffs

allege in their Petition that Bard is a Delaware corporation with its principal place of business in

New Jersey. (Pet., ¶ 87). Thus, Bard is not “at home” in Missouri such to make Bard amenable

to suit in this District. Nor does this Court hold that this case is an “exceptional case” that would

allow this Court to exercise general jurisdiction over Bard based upon its contacts with Missouri.

Daimler, 571 U.S. at 139, n.19. Plaintiffs have not alleged any facts to suggest Bard’s activities in

Missouri are anything other than that of a business conducting activities in multiple states. See

Barron v. Pfizer, Inc., No. 4:15-CV-584 CAS, 2015 WL 5829867, at *2 (E.D. Mo. Oct. 6, 2015).

For example, Plaintiffs have not pled that Bard maintains its corporate headquarters in Missouri,

is managed from Missouri, or has revenue from sales in Missouri that exceed that of other states.

Id. The mere marketing of pelvic mesh implants in Missouri does not make Bard’s connection

with the state continuous and systematic as to render it at home here. See Goodyear, 564 U.S. at

923. The Court finds that Bard’s regular business in this forum is not sufficient to confer general

jurisdiction. See Daimler, 571 U.S. at 118–19 (rejecting the concept that a business organization

is at home in a forum state merely because it does significant business there). Accordingly, the

Court holds it does not have general jurisdiction over Bard based upon the allegations in the

Petition.

B. Specific Jurisdiction

“In order for a state court to exercise specific jurisdiction, ‘the suit’ must ‘aris[e] out of or

relat[e] to the defendant’s contacts with the forum.’” Bristol-Myers Squibb Co. v. Superior Ct. of

California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (quoting Daimler, 571 U.S. at 127).

That is, there must be “an affiliation between the forum and the underlying controversy, principally

an activity or an occurrence that takes place in the forum State.” Id. When “there is no such

connection, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected

activities in the state.” Id. at 1781. “Because of this requirement, specific jurisdiction has been

called ‘conduct-linked jurisdiction,’ which focuses upon the specific conduct of the defendant in

the forum state.” A.T. Through Travis v. Hahn, 341 F. Supp. 3d 1031, 1036 (E.D. Mo. 2018)

(quoting Daimler, 571 U.S. at 122).

Plaintiffs contend that this Court has specific jurisdiction under the Missouri long-arm

statute, Mo. Rev. Stat. § 506.500, because Bard “committed a tortious act in Missouri through the

Design, Manufacturing, Sales, marking and failure to warn about not only the Align product, which

was implanted in Plaintiff Kostedt[,]” a Missouri resident. (ECF No. 23 at 5 (citing Pet., ¶¶ 1, 2,

89)). Plaintiffs contend that any deficiencies in their factual allegations regarding the place of

implantation (allegedly Missouri) could simply be rectified through “a minor amendment.” (ECF

No. 23 at 6, n.2). Plaintiffs further rely on their allegation that Bard purposefully availed itself in

Missouri because it “sold and marketed [its] products there.” (ECF No. 23 at 6 (citing Pet., ¶¶ 1,

89, 2, 5-11 [Failure to Warn]; 12-15 [Manufacturing Defect]; 16-25 [Design Defect]; 26-34

[Negligence])). Plaintiffs assert that Bard took an “active action” to put its product in Missouri.

(ECF No. 23 at 6)). Plaintiffs contend the connection between Bard’s actions and Missouri is

exemplified “[s]ince at least one of the Plaintiffs in this particular complaint received their implant

within the state of Missouri[.]” (ECF No. 23 at 9).2

The Court finds that Bard’s sale of the pelvic mesh products does not weigh in favor of

specific jurisdiction because they are “[r]andom, fortuitous, or attenuated contacts[.]” Pasch v.

OnDoc, LLC., No. 4:20-CV-00782-MTS, 2021 WL 4148337, at *2 (E.D. Mo. Sept. 13, 2021)

(citing Burger King Corp., 471 U.S. at 475 (1985)). That is, the Court cannot exercise specific

jurisdiction over Bard based upon its sale of pelvic mesh products in Missouri because this lawsuit

does not “arise out of or relate to the defendant's contacts with the forum.” Bristol-Myers Squibb

Co., 137 S. Ct. at 1780; Williams v. LG Chem, Ltd., No. 4:21-CV-00966-SRC, 2021 WL 6072500,

at *3 (E.D. Mo. Dec. 23, 2021). Plaintiffs have not alleged a connection between Bard’s sale of

the pelvic mesh in Missouri and any of Plaintiffs’ injuries. (ECF No. 23 at 6, n.2). Plaintiffs do

not allege that Plaintiffs received their implants in Missouri, Plaintiffs or their physicians were

warned regarding the implants in Missouri, Plaintiffs received treatment in Missouri, or Plaintiffs

were injured in Missouri. See Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017,

1019 (2021) (quoting Bristol-Myers, 137 S.Ct. at 1786) (“the plaintiff's claims ‘must arise out of

or relate to the defendant's contacts’ with the forum”). Rather, Plaintiffs allege “[a]fter the device

2 Plaintiffs attempt to discount other cases cited by Bard because they are based upon

pharmaceutical drug products, not pelvic mesh implants as in this case. (ECF No. 16 at 6, n.2).

Plaintiffs, however, do not explain why these product liability cases are irrelevant, simply because

of the different products.

was implanted, Plaintiff [] began to experience severe complications related to the implant, . . .

[and] may have underwent multiple corrective surgeries to remove all or part of the pelvic mesh

device.” (Pet., ¶¶ 1, 23, 30, 37, 66, 68, 77). The Court finds these allegations insufficient for

personal jurisdiction over Bard. The Court grants Bard’s Motion to Dismiss because the Court

does not have specific jurisdiction over Bard based upon the allegations in Plaintiffs’ Petition.

C. Leave to Amend

In an attempt to save their Petition, Plaintiffs first contend that the Court should overlook

their failure to plead that Bard’s product was implanted in Plaintiffs Deborah Kostedt, Kimberly

Cook, Barbara Doubt, Joy Goodell, Cathy Myers, Mary Alice Nielson, and Connie Stanton in

Missouri because “it would simply require a minor amendment” to cure this pleading deficiency.

(ECF No. 23 at 6, n.2). Later, Plaintiffs ask the Court that “dismissal be without prejudice and

with leave to amend.” (ECF No. 23 at 10-11 (citing Lopez v. Smith, 203 F. 3d 1122, 1130 (9th

Cir. 2000)).

Plaintiffs filed their opposition to Bard’s Motion to Dismiss more than five months ago.

In their opposition, Plaintiffs acknowledged their pleading deficiencies, yet they still have not filed

a proposed amended petition. “The Eighth Circuit has repeatedly held that district courts do not

abuse their discretion in denying leave to amend where the plaintiff did not file a motion for leave

to amend and submit a proposed amended complaint, and merely asked for leave to amend in its

response to a motion to dismiss.” Tracy v. SSM Cardinal Glennon Children’s Hosp., No. 4:15-

CV-1513 CAS, 2016 WL 3683000, at *16 (E.D. Mo. July 12, 2016) (citing Geier v. Missouri

Ethics Comm’n, 715 F.3d 674, 678 n.4 (8th Cir. 2013); Minneapolis Firefighters’ Relief Ass’n v.

MEMC Electronic Materials, Inc., 641 F.3d 1023, 1030 (8th Cir. 2011); In re 2007 Novastar

Financial, Inc., Secs. Litig., 579 F.3d 878, 884-85 (8th Cir. 2009); Clayton v. White Hall Sch.

Dist., 778 F.2d 457, 460 (8th Cir. 1985)); Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th

Cir. 2008) (citing Wolgin v. Simon, 722 F.2d 389, 394 (8th Cir. 1983) (granting leave to amend a

complaint where the plaintiff has not submitted a proposed amendment is inappropriate). The

Court denies Plaintiffs’ request for leave to amend their Petition because Plaintiffs have not

provided a proposed amended complaint to the Court.

Accordingly,

IT IS HEREBY ORDERED that Defendant C.R. Bard, Inc.’s Motion to Dismiss

Plaintiffs’ Petition (ECF No. 8) is GRANTED. Plaintiffs’ claims against C.R. Bard, Inc. are

DISMISSED.

Dated this 1st day of February, 2022.

RONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

-8-