MURPHY v. EISAI, INC (U.S.)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SEAN MURPHY,

Civ. No. 19-17552 (KM) (SCM)

Plaintiff,

OPINION

v.

EISAI, INC and EISAI, LTD,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Sean Murphy claims that the company for which he worked

failed to appropriately accommodate his disability by furnishing him with the

electric sit-stand desk that he requested. Murphy was hired by Defendant

Eisai, Ltd (“Eisai UK”) to work at their offices in Hatfield, England, UK. He

brings suit against Eisai UK as well as a separate entity in the United States,

Eisai, Inc. (“Eisai US”). Now before the Court is the defendants’ motion to

dismiss the complaint for lack of personal jurisdiction over Eisai UK and for

failure to state a claim, in that the Rehabilitation Act does not apply

extraterritorially. For the reasons set forth below, the motion is granted.

I. Background1

Defendant Eisai UK is an entity headquartered in England. (Compl. ¶ 3).

Defendant Eisai US is an entity headquartered in New Jersey. (Id. ¶ 2).

1 Citations to the record will be abbreviated as follows:

“DE __” refers to the docket entry numbers in this case.

“Compl.” refers to the complaint (DE 1)

“Def. Br.” refers to defendants’ Memorandum of Law in Support of Defendants’

Motion to Dismiss Plaintiff’s Complaint (DE 8)

“Pl. Opp.” refers to the plaintiff’s opposition (DE 9)

On June 25, 2018, Plaintiff Sean Murphy was hired as a subcontractor

by Eisai UK through a third-party hiring agency, Allegis Group Limited, d/b/a

Aerotek (“Aerotek”). (Id. ¶ 11). His duties involved working on statistical reports

for a clinical trial sponsored by Eisai UK. (Id.). Eisai US was listed as the

“responsible party” on that clinical trial. (Id.). Murphy’s work was managed by

Mr. Cixin He, an employee of Eisai US, operating out of an office in Woodcliff

Lake, New Jersey. (Id. ¶ 13).

Mr. Murphy worked entirely in England, but participated in regular

conference calls with Mr. He and others who were physically located in New

Jersey. (Id. ¶ 14). Mr. He traveled to England to meet with his statistical team

in July of 2018. Officials from Eisai UK and Eisai US would periodically hold

meetings in New Jersey. (Id. ¶ 15).

On Murphy’s first day at work, he received an email from the Health and

Safety Department of Eisai UK requesting that he complete a desk ergonomics

checklist. (Id. ¶ 20). He responded that he had certain medical conditions

requiring a sit-stand desk. (Id. ¶ 21). Eisai UK sent one of its employees, Elaine

Gillingham, to meet with him and conduct a work desk evaluation. (Id. ¶¶ 24,

25).

On July 15, 2018, Murphy received an email from Aerotek, requesting a

photograph of a sit-stand desk “already located and available in his working

space.” (Id. ¶ 27). Mr. Murphy complied the next day, and met with Andrew

Bolton, a human resources representative of Eisai UK, and Lawrence Marriage,

a representative of Aerotek. (Id. ¶¶ 28–29). During this meeting, the three

discussed various possibilities for accommodating Murphy’s need for a sit-

“Def. Reply Br.” refers to Defendants’ Reply Memorandum in Further Support of

Defendants’ Motion to Dismiss Plaintiff’s Complaint (DE 15)

“Alvarez Cert.” refers to the Certification of Gregory T. Alvarez and the Exhibits

attached to that Certification (DE 8-2)

“Mayer Cert.” refers to the Certification of Susan Mayer (DE 15-2)

stand desk. (Id. ¶¶ 29–31). Another meeting was held on August 7, 2018, again

with Mr. Marriage from Aerotek, but with a different representative of Eisai

UK’s human resources department, Nicola Coombe. (Id. ¶ 32). The next day,

Ms. Coombe emailed Murphy denying his request for the sit-stand desk. (Id. ¶

33).

Later, allegedly on August 28, 2018, Murphy emailed Christa Murphy,2

the director of human resources at Eisai US. (Id. ¶ 35). She allegedly responded

to this email “by ignoring Mr. Murphy’s request for accommodation.” (Id. ¶ 36).

On August 29, 2018, Andrew Bolton, the Eisai UK human resources

representative, terminated Mr. Murphy. (Id. ¶ 38).

Mr. Murphy filed a complaint in this Court on September 3, 2019,

naming Esai UK and Esai US as defendants. (DE 1). He brings four counts

pursuant to the Rehabilitation Act of 1973: one count of disability

discrimination and one count of retaliation against each defendant. (Id.).

Defendants have jointly filed a motion to dismiss for (1) lack of personal

jurisdiction as to Eisai UK and (2) failure to state a claim as to both

Defendants. (DE 8). Plaintiff filed a brief in opposition (DE 9), to which

Defendants filed a reply (DE 15). The matter is therefore briefed and ripe for

decision.

II. Legal Standards

A. Fed. R. Civ. P. 12(b)(6)

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in

part, if it fails to state a claim upon which relief can be granted. The defendant,

as the moving party, bears the burden of showing that no claim has been

stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462,

469 n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts

alleged in the complaint are accepted as true and all reasonable inferences are

2 Throughout, “Murphy” should be understood to refer to the plaintiff, Mr. Sean

Murphy. References to Ms. Christa Murphy (no relation, Compl. ¶ 35 n.3) will be

clearly identified as such.

drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v.

Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

Federal Rule of Procedure 8(a) does not require that a complaint contain

detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the

complaint’s factual allegations must be sufficient to raise a plaintiff’s right to

relief above a speculative level, so that a claim is “plausible on its face.” Id. at

570; see also West Run Student Housing Assocs., LLC v. Huntington Nat. Bank,

712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met

“when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

While “[t]he plausibility standard is not akin to a ‘probability requirement’ . . .

it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.

B. Fed. R. Civ. P. 12(b)(2)

In advance or in lieu of an answer, a defendant may move to dismiss a

complaint for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). The

issue is ultimately a factual one, as to which the plaintiff has the burden:

A Rule 12(b)(2) motion ... is inherently a matter which requires

resolution of factual issues outside the pleadings, i.e. whether in

personam jurisdiction actually lies. Once the defense has been

raised, then the plaintiff must sustain its burden of proof in

establishing jurisdictional facts through sworn affidavits or other

competent evidence.... [A]t no point may a plaintiff rely on the bare

pleadings alone in order to withstand a defendant's Rule 12(b)(2)

motion to dismiss for lack of in personam jurisdiction. Once the

motion is made, plaintiff must respond with actual proofs, not

mere allegations.

Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 101 (3d Cir. 2004) (citing

Patterson v. FBI, 893 F.2d 595, 603–604 (3d Cir. 1990) (citing Time Share

Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67 n. 9 (3d Cir.1984))

(internal citations omitted).)

Both sides offered evidence on the personal jurisdiction issue. But where,

as here, there has not been discovery or an evidentiary hearing, the plaintiff

receives the benefit of what amounts to a Rule 12(b)(6) standard:

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

plaintiff bears the burden of establishing the court's jurisdiction

over the moving defendants. Pinker, 292 F.3d at 368. However,

when the court does not hold an evidentiary hearing on the motion

to dismiss, the plaintiff need only establish a prima facie case of

personal jurisdiction and the plaintiff is entitled to have its

allegations taken as true and all factual disputes drawn in its

favor.

Miller Yacht Sales, 384 F.3d at 97; accord Danziger & De Llano, LLP v. Morgan

Verkamp LLC, 948 F.3d 124, 129 (3d Cir. 2020) (“Because the District Court

did not hold an evidentiary hearing on personal jurisdiction, we take [plaintiff]'s

factual allegations as true.”).

III. Discussion

A word about the order of discussion:

The extraterritorial effect of the Rehabilitation Act, which implicates the

scope of the conduct reached by the statute, presents a Rule 12(b)(6) issue of

failure to state a claim. See Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247,

254, 130 S. Ct. 2869, 2877 (2010) (holding that extraterritorial application of

statute is merits issue under Fed. R. Civ. P. 12(b)(6), not a jurisdictional issue

under Fed. R. Civ. P. 12(b)(1)). Personal jurisdiction over Eisai UK, however,

presents a jurisdictional issue under Rule 12(b)(2).

Classically, in a one-defendant case, the court must first decide the

defendant’s Rule 12(b)(2) motion to dismiss the complaint for lack of personal

jurisdiction. If jurisdiction is present, the court will proceed to the merits of the

defendant’s Rule 12(b)(6) motion to dismiss for failure to state a claim; if

personal jurisdiction is absent, the court is powerless to address the merits of

the Rule 12(b)(6) motion.3 Here, however, there are two defendants: Eisai US

and Eisai UK. Only one, Eisai UK, asserts that the court lacks personal

jurisdiction over it. So whether or not Eisai UK’s jurisdictional motion is

granted, the Court must address the merits of the Rule 12(b)(6) motion, at least

as regards one defendant, if not both.

It is therefore merely as a matter of convenience that this Opinion

addresses the Rule 12(b)(6) motion first. The personal jurisdiction issue is more

easily grasped once the substantive factual allegations of the complaint, and

their connection if any to the U.S., have been explored.

In Part A, I hold that that the complaint must be dismissed for failure to

state a claim. In doing so, I accept the argument, common to both defendants,

that the complaint impermissibly seeks to give extraterritorial effect to the

Rehabilitation Act. That holding surely applies Eisai US; whether it also

3 In that connection, the Third Circuit has adopted what appears to be a bright-

line rule, believing itself bound by the principles embodied in Supreme Court

precedent. See In re Lipitor Antitrust Litig., 855 F.3d 126, 151 (3d Cir. 2017)

(remanding because the district court improperly dismissed defendants under Rule

12(b)(6) without first considering subject matter or personal jurisdiction); Malay. Int’l

Shipping Corp. v. Sinochem Int’l Co., 436 F.3d 349, 358 (3d Cir. 2006) (“An actual

determination must be made whether subject matter jurisdiction exists before a court

may turn to the merits of a case”; in addition, “[p]ersonal jurisdiction is also ‘an

essential element of the jurisdiction of a district . . . court, without which the court is

powerless to proceed to an adjudication.’”).

Other courts of appeals, however, have permitted the district courts to avoid

discovery and litigation over personal jurisdiction, where the result would be merely to

poise a meritless case for its inevitable dismissal on the merits. See O’Brien v. Town of

Bellingham, 943 F.3d 514, 527 (1st Cir. 2019) (“[W]here an appeal presents a difficult

jurisdictional issue, yet the substantive merits underlying the issue are facilely

resolved in favor of the party challenging jurisdiction, the jurisdictional issue may be

avoided.”); SPV OSUS, Ltd. V. UBS AG, 882 F.3d 333, 346-48 (2d Cir. 2018) (Calabresi,

J., concurring) (arguing that courts are permitted to assume personal jurisdiction in

order to reach a merits question); Lee v. City of Beaumont, 12 F.3d 933, 937 (9th Cir.

1993) (“A court may assume the existence of personal jurisdiction and adjudicate the

merits in favor of the defendant without making a definitive ruling on jurisdiction.”).

extends to Eisai UK, however, depends on the antecedent issue of whether the

court has personal jurisdiction over Eisai UK.4

In Part B, therefore, I consider whether the Court possesses personal

jurisdiction over Eisai UK. I hold that jurisdiction is lacking, and dismiss the

complaint against Eisai UK on that basis. I will exercise my discretion to deny

jurisdictional discovery.

Both dismissals, however, are without prejudice. An amended complaint,

should one be filed, may present the issues differently.

A. Failure to state a claim (Fed. R. Civ. P. 12(b)(6))

Defendants make a number of Rule 12(b)(6) arguments. The first is that

the Rehabilitation Act, pursuant to which Murphy brings each cause of action,

does not apply to this case, which is based on conduct that occurred outside of

the United States. I agree that the Rehabilitation Act does not apply

extraterritorially here, and that the complaint therefore fails to state a claim. I

do not reach Defendants’ other merits arguments.

It is a “longstanding principle of American law that legislation of

Congress, unless a contrary intent appears, is meant to apply only within the

territorial jurisdiction of the United States.” Morrison, 561 U.S. at 255, 130 S.

Ct. at 2877. Accordingly, “[w]hen a statute gives no clear indication of an

extraterritorial application, it has none.” Id.

The court, in analyzing an extraterritoriality issue, must undertake a

two-step analysis to determine (1) whether the statute has extraterritorial

effect, and if not, (2) whether the focus of the plaintiff’s claim consists in foreign

conduct:

At the first step, we ask whether the presumption against

extraterritoriality has been rebutted—that is, whether the statute

gives a clear, affirmative indication that it applies extraterritorially.

We must ask this question regardless of whether the statute in

question regulates conduct, affords relief, or merely confers

4 I set aside contingent issues such as the res judicata effect of a dismissal as to

Eisai US alone.

jurisdiction. If the statute is not extraterritorial, then at the second

step we determine whether the case involves a domestic

application of the statute, and we do this by looking to the

statute's “focus.” If the conduct relevant to the statute's focus

occurred in the United States, then the case involves a permissible

domestic application even if other conduct occurred abroad; but if

the conduct relevant to the focus occurred in a foreign country,

then the case involves an impermissible extraterritorial application

regardless of any other conduct that occurred in U.S. territory.

RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2101 (2016).

1. Step one: Extraterritorial scope of Rehabilitation Act

As for the first step, the Rehabilitation Act contains no clear indication of

extraterritorial application. Indeed, it explicitly provides to the contrary:

No otherwise qualified individual with a disability in the United

States, as defined in section 7(20) [29 USCS § 705(20)] shall, solely

by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving

Federal financial assistance . . . .

29 U.S.C. § 794(a) (emphasis added). There is substantial case law, including a

non-precedential Third Circuit case, citing that statutory wording and holding

that the Rehabilitation Act does not have extraterritorial scope. See, e.g., Archut

v. Ross Univ. Sch. of Veterinary Med., 580 F. App'x 90 (3d. Cir. 2014), aff’g with

approval No. CIV.A. 10-1681 MLC, 2013 WL 5913675 (D.N.J. Oct. 31, 2013);

Oluwamuyiwa Awodiya v. Ross Univ. Sch. of Med., 391 F. Supp. 1098, 1106-07

(S.D. Fla. 2019); Galligan v. Adtalem Global Educ. Inc., 2019 U.S. Dist. LEXIS

17218, at *6-7 (N.D. Ill. 2019) (holding the Rehabilitation Act “by its own terms

limits relief to those ‘in the United States,’ language which supports rather

than rebuts the presumption against extraterritoriality”); Straw v. U.S. Dep't of

State, No. CV ELH-19-2294, 2020 WL 2490022, at *13 (D. Md. May 14, 2020)

(holding that “the Rehabilitation Act does not protect individuals located

abroad”), aff'd o.b., 813 F. App'x 108 (4th Cir. 2020).

I agree. The Rehabilitation Act does not have extraterritorial application.

It does not reach conduct in foreign countries, even if such conduct would

violate the Act if performed in the United States.

2. Step 2: Whether the acts relevant to the “focus” of the

Rehabilitation Act claims are domestic or foreign

I therefore move to step two: determining whether the plaintiff’s claim

does in fact exceed the territorial scope of the Rehabilitation Act. That step two

analysis requires that the court consider (a) the “focus” of the statutory cause

of action, and (b) whether the acts relevant to that focus occurred domestically

or abroad:

As indicated, the Rehabilitation Act does not apply abroad.

Therefore, the Court must “determine whether this case involves a

domestic application of the statute,” which entails “looking to the

statute's ‘focus.’” RJR Nabisco, 136 S. Ct. at 2101. “If the conduct

relevant to the statute's focus occurred in the United States, then

the case involves a permissible domestic application even if other

conduct occurred abroad.” Id. On the other hand, “if the conduct

relevant to the focus occurred in a foreign country, then the case

involves an impermissible extraterritorial application regardless of

any other conduct that occurred in U.S. territory.” Id.

Straw v. U.S. Dep't of State, 2020 WL 2490022, at *13.

a. The “focus” of a claim of discrimination or retaliation

under the Rehabilitation Act

The first stage of the step two analysis is to identify the “focus” of the

particular statutory claim at issue.

The elements of a claim of failure-to-accommodate disability

discrimination, in violation of the Rehabilitation Act (Counts 1 and 3), are well

established:

In order for an employee to make out a prima facie case of

discrimination under the Rehabilitation Act, the employee bears

the burden of demonstrating (1) that he or she has a disability, (2)

that he or she is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodations

by the employer; and (3) that he or she was nonetheless terminated

or otherwise prevented from performing the job. The plaintiff must

make a prima facie showing that reasonable accommodation is

possible. If the plaintiff is able to meet these burdens, the

defendant then bears the burden of proving, as an affirmative

defense, that the accommodations requested by the plaintiff are

unreasonable, or would cause an undue hardship on the employer.

Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996). The “focus” of that cause of

action, then, is the employer’s wrongful refusal to provide a reasonable

accommodation of the employee’s disability in the workplace.5

The elements of a claim of retaliation under the Rehabilitation Act

(Counts 2, 4) are as follows:

[P]laintiffs must show (1) that they engaged in a protected activity,

(2) that defendants' retaliatory action was sufficient to deter a

person of ordinary firmness from exercising his or her rights, and

(3) that there was a causal connection between the protected

activity and the retaliatory action.

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

Here, too, the “focus” of this statutory cause of action is a wrongful act of

retaliation by the employer, up to and including firing the employee.

b. Whether the conduct relevant to that “focus” is domestic or

foreign

The next stage of the step two analysis is to determine whether the

“conduct relevant to that focus” occurred in the United States or abroad. If the

conduct relevant to the focus occurred outside of the US, “then the case

involves an impermissible extraterritorial application”; and that conclusion

holds true “regardless of any other conduct that occurred in U.S. territory.”

RJR Nabisco, 136 S. Ct. at 2101.

The conduct relevant to the Rehabilitation Act claims is set forth in the

complaint, as supplemented by certain documents cited and relied upon

therein.

5 I use the terms employer and employee as a shorthand. The Complaint alleges

that Mr. Murphy was hired as a subcontractor, through a third-party agency, Aerotek

(Compl. ¶ 11), although his precise status and the mechanics are unclear.

When working at the offices of Eisai UK in England, Mr. Murphy

requested an accommodation of his disability, in the form of an electric sit-

stand desk. His workplace was located in the United Kingdom, his work was

performed there, and the locus of his suffering from his un-accommodated

disability would have been his regular desk or work station at the offices of

Eisai UK in Hatfield, England. The communications, negotiations, and

meetings concerning the sit-stand desk were between Mr. Murphy and Eisai

UK employees, and they all occurred in the United Kingdom. It was Eisai UK

which allegedly declined, orally and in writing, to furnish Mr. Murphy the sit-

stand desk. The specific persons who allegedly refused the accommodation, in

Murphy’s telling, were Andrew Bolton and Nicola Coombe, both employed by

the Human Resources department of Eisai UK.6 (See Compl. ¶¶ 28–34). The

complaint identifies an August 8, 2018 email from Coombe as the denial of

Murphy’s accommodation request. (Id. ¶ 33).

Murphy’s dismissal from his UK position, too, is alleged to have occurred

in the UK. It was accomplished and conveyed to him by Bolton and an

unidentified human services representative, both employees of Eisai UK,

allegedly on August 29, 2018. (Id. ¶ 38)

The “focus” of the retaliation claims (Counts 2 and 4) is also on the UK.

To a great degree, the “retaliation” is based on the same facts as the refusal to

provide an accommodation, already discussed. Counts 2 and 4 allege that the

retaliation consisted in the failure to engage in an interactive process;

unilateral determination or failure to determine whether Plaintiff’s disability

was being reasonably accommodated; failure to maintain or follow an

antidiscrimination policy; and, in general, refusal to accommodate the

disability.

The facts section of the Complaint further alleges, if not very clearly, that

the retaliation consisted of Murphy’s dismissal. (The only explicit invocation of

6 He also faults Lawrence Marriage of Aerotek, although Aerotek is not named as

a defendant.

that theory is in the topic heading preceding Compl. ¶¶ 20–38: “B. Disability

Discrimination and Retaliation (by discharge).”) The dismissal, as noted, is

alleged to have been accomplished entirely within the UK by Bolton and a

human services representative, both employees of Eisai UK. (Id. ¶ 38)

The acts that form the very substance of the Rehabilitation Act

discrimination and retaliation claims, then, are wholly centered on the UK. It

being clear that the focus of the claims lies within the UK, it is inconsequential

whether some additional conduct within the US can be identified. See Straw,

supra (quoting RJR Nabisco, supra).

I nevertheless consider Murphy’s proffer that some of the wrongful

conduct, or related conduct, allegedly occurred in the United States:

“[Murphy] communicated with persons in New Jersey and was

subject to work directives from New Jersey, he also communicated

with human resources in New Jersey and [sic] less than 24-hours

[before7] Murphy was terminated. There is strong temporal

proximity with the communications between human resources in

New Jersey and his termination in England. This gives rise to

‘reasonable expectation’ that discovery will reveal evidence of the

necessary element.” (Pl. Opp. at 7).

That Murphy communicated by telephone or email with, and received

“work directives” from, persons at Eisai US in New Jersey has no bearing on

his Rehabilitation Act claim. He does not so much as allege that his supervisor

or any other New Jersey-based personnel had anything to do with the denial of

an electric sit-stand desk at his work station in England. The Court may accept

for purposes of this motion that some supervision of his statistical work

emanated from New Jersey, or that his statistical work in the United Kingdom

was used to analyze results of clinical trials that had a connection to New

Jersey. Those circumstances do not imply that violations of the Rehabilitation

Act occurred in New Jersey. The allegations of the complaint, on their face,

7 I interpolate the word “before” because the reference is clearly to Murphy’s

allegation that he emailed Christa Murphy, the director of human resources at Eisai

US, on August 28, 2018, shortly before he was terminated. (Compl. ¶ 35).

establish that any conduct that would violate the Rehabilitation Act—primarily,

the alleged denial of a sit-stand desk and Murphy’s firing—occurred in the U.K.

The complaint alleges and purports to describe an email exchange with

Christa Murphy, the Eisai US human resources person in New Jersey. The

complaint alleges that the email exchange occurred on August 28, 2018, and

that Mr. Murphy was dismissed the following day, August 29, 2019. This

“temporal proximity,” according to Plaintiff, indicates that discovery is likely to

uncover some sort of involvement by the New Jersey employees of Eisai US in

the Rehabilitation Act violation.

Defendants have supplied copies of the emails themselves. (Alvarez Cert.,

Ex. H).) I have inspected the email exchange with Christa Murphy that Plaintiff

cites, describes, and relies on in the complaint.8

8 The general rule is that courts do not consider matters outside of the pleadings

when evaluating a Rule 12(b)(6) motion to dismiss. An exception exists, however, for

any document integral to or explicitly relied upon in the complaint. In re Burlington

Coat Factory Sec. Litig., 114 F. 3d 1410, 1426 (3d Cir. 1997).

The rationale underlying this exception is that the primary problem

raised by looking to documents outside the complaint—lack of notice to

the plaintiff—is dissipated “[w]here plaintiff has actual notice ... and has

relied upon these documents in framing the complaint.” Watterson v.

Page, 987 F.2d 1, 3–4 (1st Cir. 1993) (quoting Cortec Indus., Inc. v. Sum

Holding L.P., 949 F.2d 42, 48 (2nd Cir.1991)) . . . . What the rule seeks to

prevent is the situation in which a plaintiff is able to maintain a claim of

fraud by extracting an isolated statement from a document and placing it

in the complaint, even though if the statement were examined in the full

context of the document, it would be clear that the statement was not

fraudulent.

In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426. Thus, factual allegations in

a complaint are entitled to be credited, but a plaintiff may not describe and rely on the

purported contents of a document while shielding the document itself from scrutiny.

Plaintiff cited, described, and relied on this email exchange with Christa

Murphy in his complaint. (Compl. ¶¶ 35-36). Defendants, responding, supplied copies

of the emails (Alvarez Cert., Ex. H), and Plaintiff does not appear to dispute their

authenticity. In some respects—particularly, the dates—the emails themselves do not

appear to match the complaint’s description of them.

Initially, the timestamps on the emails appear to be inconsistent with the

“temporal proximity” theory as described in the Complaint.9 For this reason

alone, I would reject the temporal proximity allegations (albeit without

prejudice). Perhaps the complaint could be amended to explain or clarify, but

the emails on which it depends do not bear the dates that are alleged.

Nor does the content of the emails give rise to an inference that any

violation of the Rehabilitation Act occurred in New Jersey. In his email to

Christa Murphy, Plaintiff describes his frustrations with Eisai UK’s Human

Resources department relating to his request for an electric sit-stand desk.

(Alvarez Cert., Ex. H at 2). He attaches to his email a letter from Eisai UK,

dated August 22, 2018, which he characterizes as a (further) denial of his

request for an accommodation. In that letter, Eisai UK states its position that

independent contractors are not covered by the U.K. law requiring that

disabilities be accommodated in the workplace; nevertheless offers to continue

letting Murphy use a shared electric sit-stand desk not currently in use by

others; offers to let him work at home 5 days per week; and offers a desk-top

standing desk, albeit without the electric feature. Id.

In the email to Christa Murphy, Plaintiff acknowledges that he is working

in Hatfield, England, U.K. He states that he has brought an EEOC complaint in

9 Plaintiff’s “temporal proximity” theory is that he sent an email to Christa

Murphy on August 28, 2018 (Compl. ¶ 35) and was terminated on August 29, 2018

(Compl. ¶ 38). But the actual email Plaintiff sent to Christa Murphy bears a date

stamp of August 29, 2018, at 12:45 p.m. (It is not stated whether this was local U.K.

time). Ms. Murphy’s responding email is not dated August 28, or even August 29,

preceding Plaintiff’s dismissal. Christa Murphy’s responding email is time-stamped

August 30, 2018 at 1:30 p.m. (Again, it is not stated whether this was local U.S. time).

Even allowing for transatlantic time zones, the dates are unaffected; the difference

between London, UK and Newark, NJ time in August 2018 was -5 hours.

https://www.timeanddate.com/worldclock/converter.html?iso=20180828T112500&p

1=136&p2=861; https://www.worldtimebuddy.com/

Plaintiff does not dispute the authenticity of the timestamped email exchange

with Christa Murphy. Based on the timestamps, Plaintiff’s proffered time sequence

(emails, then dismissal) appears to be incorrect, which would have implications for his

“temporal proximity” theory.

the United States. Eisai US, he says, is liable for Eisai UK’s failure to supply an

adequate workplace accommodation for his disability.

Christa Murphy, in her capacity as Senior Director of Human Resources

for Eisai US, responds to that email. Her responding email states essentially

that Eisai US is not Mr. Murphy’s employer, has no contractual relationship

with him or his company, is not the source of his grievance, and exercises no

control over Eisai UK:

Thanks for your email. It is our understanding that your company

SPM Consulting Ltd was providing services to Eisai Limited (ESL)

in the UK through Aerotek (part of Allegis Group Limited). To the

extent that you have concerns about your employment relationship

with Aerotek (part of Allegis Group Limited), please contact them

directly.

Eisai Inc. in the US has no contractual or business relationship

with SPM Consulting, Aerotek (part of Allegis Group Limited) or

you, and thus has no employment related responsibilities in this

matter. Furthermore Eisai Inc. in the US has no control (whether

as a parent company, shareholder or otherwise) over Eisai Limited

which is a wholly owned subsidiary of Eisai Europe Limited, a

company registered in England and Wales.

(Alvarez Cert. Ex. H).

The picture that emerges is that Plaintiff unilaterally emailed a

complaint to the Human Resources department of a corporation distinct from

the one for which he worked. But complaining to Company #2 about one’s

treatment by Company #1 does not render Company #2 (however

unsatisfactory its response) liable for Company #1’s discriminatory actions. Nor

can Mr. Murphy successfully argue that the violation occurred in the United

States because he sent an email to New Jersey.

The complaint alleges that the discrimination or retaliation consisted of

the failure to properly process Mr. Murphy’s request for an accommodation, in

the form of an electric sit-stand desk; the denial of that accommodation; and,

ultimately, the termination of Plaintiff’s position with Eisai UK. (Compl.,

passim).

These alleged acts of discrimination or retaliation, assuming as I must

that they occurred, surely occurred in the UK. They could only be performed by

Eisai UK. Eisai US could not fire Mr. Murphy; he did not work for them. Eisai

US did not deny him an appropriate standing desk; he did not work in their

New Jersey office, or even in the United States. I have already discussed the

timing problems with the “temporal proximity” theory that Mr. Murphy’s firing

occurred just after his email exchange with Christa Murphy. But even setting

aside the timing, it is not plausibly alleged that Christa Murphy, who worked at

an affiliated corporation, had any authority or ability to fire Mr. Murphy from

his position at Eisai UK. Even reading between the lines, I cannot find a

plausible allegation that Bolton or Coombe, who had directly dealt with Mr.

Murphy’s complaints, retaliated against him because he also belatedly

complained to Christa Murphy.

The notion that Eisai NJ did not violate Murphy’s rights in the United

States tends to merge with the notion that it did not violate his rights at all. As

to Eisai NJ or Christa Murphy, Plaintiff fails to articulate a theory of liability.

Does he mean to allege that Christa Murphy had the authority to cause

employees of Eisai UK to deny an accommodation or retaliate against Plaintiff?

Does he mean to allege that Christa Murphy in New Jersey was obligated to

furnish him a sit-stand desk in the UK? Plaintiff simply fails to allege facts that

suggest Christa Murphy or anyone in New Jersey possessed or violated any

duty to him under the Rehabilitation Act. Simply stating in the complaint that

Christa Murphy “ignored his request for accommodation” does not suffice;10

there is a whole universe of persons and corporations who could safely “ignore”

that request without incurring liability. What is missing is any indication that

Ms. Murphy or anyone at Eisai NJ was responsible for providing the

accommodation that was allegedly denied by Eisai UK.

10 Christa Murphy did not, by the way, “ignore” Plaintiff’s email; she responded

with a detailed email of her own, explaining her position that he was essentially

complaining to the wrong company.

Even the most plaintiff-friendly interpretation of these acts and

allegations would be insufficient to displace the UK “focus” of the acts allegedly

constituting violations of the Rehabilitation Act. Plaintiff’s attempt to sue under

the Rehabilitation Act for UK-based discrimination or retaliation fails as a

matter of law. The complaint does not plausibly allege a viable cause of action

under the Rehabilitation Act, and the Rule 12(b)(6) motion to dismiss must be

granted.

C. Personal Jurisdiction over Eisai UK

The complaint is therefore dismissed, at least as against Eisai US. The

logic and analysis underlying that dismissal would apply equally, if not a

fortiori, to Eisai UK. As noted above, however, extension of that Rule 12(b)(6)

dismissal to Eisai UK depends on the logically prior issue of whether the Court

possesses personal jurisdiction over Eisai UK.

1. General standards

The district court undertakes a two-step inquiry to assess whether it has

personal jurisdiction over a party. IMO Indus., Inc. v. Kiekert, AG, 155 F.3d 254,

259 (3d Cir. 1998). First, the court is required to use the relevant state’s long-

arm statute to see whether it permits the exercise of personal jurisdiction. Id.

Second, “the court must apply the precepts of the Due Process Clause of the

[federal] Constitution.” Id. Here, the first step collapses into the second,

because “New Jersey’s long-arm statute provides for jurisdiction coextensive

with the due process requirements of the United States Constitution.” Miller

Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) (citing N.J. Ct. R. 4:4-

4(c)). Accordingly, personal jurisdiction over a non-resident defendant is proper

in this Court if the defendant has “certain minimum contacts with [New Jersey]

such that the maintenance of the suit does not offend traditional notions of fair

play and substantial justice.” Provident Nat’l Bank v. Cal. Fed. Sav. & Loan

Ass’n, 819 F.2d 434, 437 (3d Cir. 1987) (quoting Int’l Shoe Co. v. Washington,

326 U.S. 310, 316 (1945)).

There are two kinds of personal jurisdiction: specific and general.

Specific jurisdiction relies on the corporate defendant’s forum-related activities

that give rise to the plaintiffs’ claims; general jurisdiction applies where the

defendant corporation’s contacts with the forum are so extensive as to render it

“at home” in the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 414 & n.8 (1984).

1. Specific Jurisdiction

For specific jurisdiction, a plaintiff’s cause of action must directly relate

to the defendant’s contact with the forum state—here, New Jersey.

Three elements are used to evaluate specific jurisdiction:

First, the defendant must have “purposefully directed [its]

activities” at the forum. Burger King Corp. v. Rudzewicz, 471 U.S.

462, 472, 105 S. Ct. 2174, 85 L.Ed.2d 528 (1985) (quotation

marks omitted).

Second, the litigation must “arise out of or relate to” at least one of

those activities. Helicopteros, 466 U.S. at 414, 104 S. Ct.

1868; Grimes v. Vitalink Commc'ns Corp., 17 F.3d 1553, 1559 (3d

Cir.1994).

And third, if the prior two requirements are met, a court may

consider whether the exercise of jurisdiction otherwise “comport[s]

with ‘fair play and substantial justice.’” Burger King,471 U.S. at

476, 105 S. Ct. 2174 (quoting Int'l Shoe, 326 U.S. at 320, 66 S.Ct.

154).

O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F. 3d 312, 317 (3d Cir. 2007)

(line breaks added).11

11 Citing O’Connor, the U.S. Court of Appeals for the Third Circuit has recently

underscored that the necessary showing for specific jurisdiction is shaped by the

nature of the claims:

For contract claims, a plaintiff must satisfy a “restrictive standard”

by showing proximate causation (also called “substantive relevance”).

O'Connor, 496 F.3d at 318, 320. But-for causation is not enough: “[T]he

defendant's contacts with the forum [must have been] instrumental in

either the formation of the contract or its breach.” Gen. Elec. Co. v. Deutz

AG, 270 F.3d 144, 150 (3d Cir. 2001) (emphasis added). So a plaintiff

Murphy makes no substantial argument as to specific jurisdiction. There

is a conclusory venue allegation that the facts of the case arose in New Jersey,

but my review of the allegations, see Section A., supra, does not support that

conclusion. Murphy worked in the United Kingdom for Eisai UK; his work

station where the sit-stand desk would be located was in the UK; he raised the

issue about the sit-stand desk with Eisai UK in the United Kingdom; and his

services were terminated by Eisai UK in the United Kingdom. Murphy argues

that his job as a statistician related to clinical tests that occurred, in part, in

New Jersey, and other facts of that nature. Such connections with New Jersey,

however, do not relate directly to his Rehabilitation Act claim; they are at best

of the “but-for” variety, which, as a matter of law, are not sufficient to support

specific jurisdiction. See Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948

F.3d 124, 130 (3d Cir. 2020).

Because none of Eisai UK’s activities giving rise to a Rehabilitation Act

claim occurred in New Jersey, there is no specific jurisdiction as to Eisai UK.

2. General jurisdiction

I turn to general jurisdiction. That doctrine sets a high threshold:

cannot allege simply that but for x’s occurrence, y (which may have been

remote and not foreseeable) would not have happened.

For tort claims, the standard is less restrictive. O'Connor, 496 F.3d

at 320. But tort claims still “require[ ] a closer and more direct causal

connection than” but-for causation. Id. at 320–23. The defendant must

have benefited enough from the forum state's laws to make the burden of

facing litigation there proportional to those benefits. Id. at 323 (citing

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.

2004)).

Plus, intentional torts require more: “The defendant [must have]

expressly aimed [its] tortious conduct at the forum” to make the forum

“the focal point of the tortious activity.” IMO Industries, Inc. v. Kiekert AG,

155 F.3d 254, 265–66 (3d Cir. 1998). And “the plaintiff [must have] felt

the brunt of the harm in the forum.” Id.

Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948 F.3d 124, 130 (3d Cir.

2020).

Goodyear [Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,

131 S. Ct. 2846 (2011)] made clear that only a limited set of

affiliations with a forum will render a defendant amenable to all-

purpose jurisdiction there. “For an individual, the paradigm forum

for the exercise of general jurisdiction is the individual's domicile;

for a corporation, it is an equivalent place, one in which the

corporation is fairly regarded as at home.” 564 U.S., at ––––, 131

S.Ct., at 2853–2854 (citing Brilmayer et al., A General Look at

General Jurisdiction, 66 Texas L.Rev. 721, 728 (1988)). With

respect to a corporation, the place of incorporation and principal

place of business are “paradig[m] ... bases for general jurisdiction.”

Id., at 735. See also Twitchell, 101 Harv. L.Rev., at 633. Those

affiliations have the virtue of being unique—that is, each ordinarily

indicates only one place—as well as easily ascertainable. Cf. Hertz

Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029

(2010) (“Simple jurisdictional rules ... promote greater

predictability.”). These bases afford plaintiffs recourse to at least

one clear and certain forum in which a corporate defendant may be

sued on any and all claims.

Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S. Ct. 746, 760 (2014).

Eisai UK is a company organized under the laws of England and Wales,

with its principal place of business in the United Kingdom. That is

presumptively its “home.” The plaintiff, even giving his allegations the full

deference they are due,12 has not come close to suggesting that Eisai UK is “at

home” in New Jersey, or that this State should be regarded as the ordinarily

“unique” forum where Eisai UK may be sued on all claims. Id.

In his complaint and opposition brief, Murphy has set forth the following

factual allegations regarding Eisai UK’s contacts with New Jersey:

• Eisai UK “transacts business in Japan and the United States

including Bergen County, NJ” (Compl. ¶ 3);

12 Defendants also provide evidence of their own that Eisai UK lacks the contacts

with New Jersey that are required for a finding of general jurisdiction. Because of the

procedural posture, however, I credit Mr. Murphy’s allegations and give him the

benefit of reasonable inferences. See p. 5, supra. That said, there does not seem to be

any major dispute regarding the relevant facts; the parties primarily disagree over

their legal significance.

• Eisai UK “receives federal monies in amounts greater than

$10,000.00” (Id.);

• Both Defendants “regularly conduct business within this district

and the acts complained of arose in this district” (Id. ¶ 8);

• “There were [ ] periodic meetings held in New Jersey between

management officials of [Eisai UK] and [Eisai US]” (Id. ¶ 15);

• “[Eisai UK] conducts clinical trials, including [Study 207], on

behalf of [Eisai US] and does the statistical analysis of the results,

but [Eisai UK] does not receive any direct profits from future sales

from a successful marketing application to the FDA” (Compl. ¶ 18);

• “[Study 207] is a clinical trial sponsored by [Eisai UK] with [Eisai

US] listed as the responsible party” (Pl. Opp. at 6);

• “[Study 304], An active Phase 3 clinical trial for Heptocellular

Carcinoma. Is currently being conducted and sponsored by [Eisai

UK] and this study has a clinical site in East Orange, NJ. [Eisai

UK] is currently doing business in New Jersey and the study

completion date is listed as July 31, 2020.” (Pl. Opp. at 6).

• Mr. Cixin He, an employee of Eisai US who was involved in clinical

trials, managed Mr. Murphy’s statistical work. (Compl. ¶ 13)

• “Mr. Cixin He traveled to the offices of [Eisai UK] in Hatfield,

England during July 2018 for a face-to-face meeting with his

statistical team, who were working at [Eisai UK].” (Id. ¶ 15).

These facts, whether considered alone or together, would not give rise to any

reasonable inference of general jurisdiction over Eisai UK.

The statements that Eisai UK “conducts business” here lack

particularity. Similarly, the general reference to management-level “meetings”

in New Jersey, even given some latitude, come nowhere near suggesting that

Eisai UK’s presence in the New Jersey meets even the minimal threshold of

being continuous and systematic. Eisai UK’s alleged receipt of federal funds,

although a prerequisite to application of the Rehabilitation Act, has no bearing

on whether it is “at home” in New Jersey.

I assume the truth of the allegation that Mr. He supervised Murphy’s

statistical work, which entailed communication between the two. Mr. He,

however, is an employee of Eisai US, not Eisai UK. The most that can be said is

that Eisai UK used the services of the employee of its affiliate in some manner.

Mr. He’s actions bear no relation to the Rehabilitation Act claims, and fall far

short of suggesting that Eisai UK is “at home” in New Jersey.

As to the clinical trials, Eisai UK argues persuasively that its connection

to such studies does not establish the necessary relationship with New Jersey.

See Tercica, Inc. v. Insmed Inc., No. 05-5027, U.S. Dist. LEXIS 41804, at *40

(N.D. Cal. June 9, 2006) (holding that no general jurisdiction existed even

though the company was participating in two clinical trials in the forum state).

Murphy does not cite any legal authority that general sponsorship of or

participation in clinical trials in the forum state confers general jurisdiction in

the sense of making that state the corporate defendant’s “home.”13

All of the above facts, singly or in combination, fail to establish or even

really suggest that Eisai UK is “at home” in New Jersey within the meaning of,

e.g., Daimler, supra, and Goodyear, supra.

Because this Court does not have specific or general jurisdiction over

Eisai UK, any claims against it must be dismissed for lack of personal

13 Defendants also argue that Mr. Murphy has overstated both the connection of

the studies to New Jersey and Eisai UK’s involvement in them. According to a

declaration from the Senior Director, Regulatory Affairs for Eisai US, Study 207 does

not have any study sites located in New Jersey. (Mayer Cert. ¶ 8). Study 304 has

multiple study sites globally, one of which is located in New Jersey. (Id. ¶¶ 12, 14).

Although Eisai UK is listed as a sponsoring party of the study as a whole, Eisai US is

the entity which has contracted for the site in New Jersey. (Id. ¶ 15). Eisai US is also

the only entity listed on regulatory filings submitted to the United States Food and

Drug Administration. (Id. ¶ 16). For present purposes, I do not resolve these factual

issues.

jurisdiction. Because this dismissal is entered on grounds of lack of

jurisdiction, it is without prejudice.

3. Jurisdictional discovery

A plaintiff bears the burden of proof that either specific or general

jurisdiction exists. Marten v. Godwin, 499 F.3d 290, 295–96 (3d Cir. 2001).

That said, a court will assist the plaintiff in proving jurisdiction “by allowing

jurisdictional discovery” where appropriate. Kirkwood v. Brenntag N. Am., Inc.,

2020 U.S. Dist. LEXIS 55104 at *14 n.3 (D.N.J. Mar. 30, 2020) (quoting Toys

“R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003)).

At the pleading stage, a plaintiff need only present “factual allegations

that suggest ‘with reasonable particularity’ the possible existence of the

requisite ‘contacts between the party and the forum state,’ such that [its] claim

is not clearly frivolous.” Id. (quoting Toys “R” Us, 318 F.3d at 456). See also

Toys “R” Us, 318 F.3d at 456 (jurisdictional discovery granted where “a plaintiff

presents factual allegations that suggest ‘with reasonable particularity’ the

possible existence of the requisite ‘contacts between [the party] and the forum

state’”) (quoting Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217,

1223 (3d Cir. 1992)). A grant of jurisdictional discovery lies within a district

court’s discretion, guided as always by the relevant legal standards.

SoftwareArt Corp. v. Satyajit Gopalakrishnan, 2008 U.S. Dist. LEXIS 55708 at

*7 (D.N.J. July 22, 2008) (citing Mass. Sch. of Law at Andover, Inc. v. Am. Bar

Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997)); Rakoff v. St. Clair, CPAS, P.C., 2013

U.S. Dist. LEXIS 33710 at *26 (jurisdictional discovery should be “freely

granted” and its scope is firmly within a district court’s discretion).

Mr. Murphy’s case for general jurisdiction, even giving the factual

allegations of the complaint (as opposed to its legal conclusions) the required

deference, lacks the required “reasonable particularity.” Murphy does not so

much as proffer a sense of what relevant jurisdictional facts discovery might

uncover. The facts and allegations do not rise to the level where I, within my

discretion, would permit further exploration through jurisdictional discovery.14

Jurisdictional discovery is therefore denied.

IV. Conclusion

For the foregoing reasons, the motion to dismiss the complaint as against

Eisai UK for lack of personal jurisdiction, and against Eisai US for failure to

state a claim, is GRANTED.

Dated: November 27, 2020

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge

14 Confirming, though not dictating, my discretionary decision is the fact that I

have already ruled, with respect to Eisai US, that the complaint does not state a claim,

so jurisdictional discovery would be futile. Should my jurisdictional ruling be

reconsidered or reversed, it is the Court’s intent that the Rule 12(b)(6) dismissal in

Part A would apply to Eisai UK as well.