We are old enough to treasure the memory of sitting in a darkened movie theater with our mother and sisters watching the original “Mary Poppins.” We were transfixed and transported by the sheer magic of the film, and we spent the next many months playing our souvenir cast album over and over on our tiny phonograph until the record was so battered that it was lovingly retired to the shelf. This coming weekend, fifty-plus years later, our now 84-year-mother and her three aging daughters will go together to see the new Mary Poppins “update.” We feel excited and nostalgic about this outing, but we harbor a suspicion that there can never be another Mary Poppins. Mary was adventurous, courageous, resourceful, mysterious, resolute, and dauntless. She was way ahead of her time — “practically perfect in every way.”
As is the tidy personal jurisdiction and venue decision on which we report today. In Carney v. Guerbet, LLC, 2018 WL 6524003 (E.D. Mo. Dec. 12, 2018), the plaintiff alleged that he was injured by a linear gadolinium-based contrast agent with which he was injected, in New Jersey, before he underwent an MRI. He filed suit in the Eastern District of Missouri asserting diversity jurisdiction and naming several corporate defendants, among them Guerbet, LLC (“Guerbet”) and Liebel-Flarsheim Company, LLC (“Liebel’).
Guerbet, LLC’s Motion to Dismiss
The plaintiff alleged that Guerbet was a Delaware LLC with is principal place of business in Indiana and that it had contracted with co-defendants Mallinkrodt, Inc. and Mallinkrodt, LLC to purchase their Missouri-based company which, the plaintiff alleged, produced the contrast agent in question. The plaintiff alleged that the court had specific personal jurisdiction over Guerbet because the company “engaged in the business of designing, licensing, marketing and/or introducing [the contrast agent] into interstate commerce,” either directly or through third parties. Carney, 2018 WL 6524003 at *3. The plaintiff did not allege that he was injected with the contrast agent in Missouri, suffered his injury in Missouri, or received treatment in Missouri. Guerbet moved to dismiss, asserting the court lacked personal jurisdiction over it. Guerbet denied that it purchased a Missouri-based business from Mallinkrodt, that any of its members or managers resided in Missouri, that the contrast agent was produced in Missouri, that it received any sales revenue for the contrast agent in Missouri, or that it advertised in any Missouri medium or any medium targeted at Missouri. Guerbet also submitted an affidavit attesting to the fact that its principal place of business is in New Jersey, not Indiana.
The court cited BMS for proposition that, “[i]n order for court to exercise specific jurisdiction over a claim, 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. . . . When there is no such connection, specific jurisdiction is lacking, regardless of the extent of a defendant’s unconnected activities in the State. Even regularly occurring sales of a product in a state do not justify the exercise of jurisdiction over a claim unrelated to those sales.” Id. at *4 (internal punctuation and citations omitted). As such, the court emphasized, allegations that “a non-resident pharmaceutical company researches, designs, tests formulates, inspects, markets or promotes a drug within the forum state are not enough to establish specific personal jurisdiction.” Id. (citations omitted). The court concluded that, even if Guerbet had acquired Mallinkrodt’s Missouri-based business, which Guerbet denied, sufficient minimum contacts would not arise from that ownership to confer specific personal jurisdiction over Guerbet. But rather than dismiss the plaintiff’s claims against Guerbet, the court found that it was “in the interest of justice” to transfer the case to the District of New Jersey pursuant to the transfer statute, 28 U.S.C. § 1406(a), “to avoid the costs and delay associated with requiring [the] plaintiff to refile the case in the transferee district.” Id. at *5.
Liebel’s Motion to Dismiss
Liebel did not challenge the court’s jurisdiction over it. Instead, it moved to dismiss for improper venue. Under 28 U.S.C. § 1391(b), venue is proper in a judicial district in which any defendant resides if all defendants are residents of the state in which the district is located, or in a district in which a substantial part of the events giving rise to the action occurred. If there is no district that qualifies under either of these standards, “any judicial district in which any defendant is subject to the court’s personal jurisdiction” is a proper venue for the action.
Always remember: jurisdictional objections are waivable. If a party fails to object to a court’s exercise of personal jurisdiction over it, it waives the objection and suffers the ripple effects of that waiver. Because Liebel did not move to dismiss for lack of jurisdiction, it waived that defense and was deemed to have submitted to the court’s jurisdiction. In turn, because Liebel was subject to the court’s jurisdiction, venue was proper under the final catch-all provision of 28 U.S.C. § 1391(b) and Liebel’s motion to dismiss was denied. As the court emphasized, “[i]t would defy logic to deem [a defendant] subject to [the court’s] personal jurisdiction yet dismiss the plaintiff’s claims against it for improper venue for want of personal jurisdiction.” Id. (internal punctuation and citations omitted).
Instead, the court granted Liebel’s alternative motion to transfer venue to the District of New Jersey, holding that the transfer was appropriate under 28 U.S.C. § 1404(a) because the convenience of the parties, the convenience of the witnesses, and the interests of justice were best served by transfer.
And so, in the wake of statutes and precedents correctly applied, the case ended up where it belonged in the first place. We like this decision. We’ll let you know how we feel about “Mary.”