Bors v. Johnson & Johnson

• Decision Date: 20 September 2016
• Docket Number: CIVIL ACTION NO. 16-2866
• Citation: 208 F.Supp.3d 648
• Parties: Nancy BORS v. JOHNSON & JOHNSON, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

208 F.Supp.3d 648

Nancy BORS

v.JOHNSON & JOHNSON, et al.

CIVIL ACTION NO. 16-2866

United States District Court, E.D. Pennsylvania.

Signed September 20, 2016

Brian J. McCormick, Jr., Mark Alan Hoffman, Scott S. Berger, Jr., Dena Young, Ross Feller Casey, LLP, Philadelphia, PA, for Nancy Bors.

April M. Byrd, Shook Hardy & Bacon LLP, James E. Robinson, Sara Anderson Frey, Gordon & Rees LLP, Philadelphia, PA, for Johnson & Johnson, et al.

MEMORANDUM

KEARNEY, District Judge

As our Court of Appeals confirmed over twenty-five years ago, companies with no business ties or contacts in Pennsylvania but who choose to register as a foreign corporation in Pennsylvania consent to this Court's exercise of personal jurisdiction over them. Two years ago, the Supreme Court again evaluated the constitutionally permissible exercise of general and specific personal jurisdiction over defendants with arguably little contact to the forum. The Supreme Court's 2014 analysis focused on personal jurisdiction absent consent. Its 2014 holdings do not depart from the well-established principles of personal jurisdiction by consent evidenced by registering to do business in Pennsylvania. When, as here, a foreign corporation registers to do business under the Pennsylvania corporate statute specifically advising the registrant of its consent to personal jurisdiction through registration, we find general and specific jurisdiction principles applying to non-consensual personal jurisdiction do not apply. In the accompanying Order, we deny the foreign corporate defendant's motion to dismiss for lack of personal jurisdiction and further find the Administrator stated claims for negligent misrepresentation, conspiracy, acting in concert and under Pennsylvania's Unfair Trade Practices Law arising from the decedent's use of baby powder allegedly causing ovarian cancer

and eventual death.

I. Background

Nancy Bors ("Bors") as Administrator of the Estate of Maureen Broderick Milliken ("Mrs. Milliken") sues Imerys Talc America, Inc. ("Imerys") and Johnson & Johnson¹ alleging their negligent, willful, and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of Johnson & Johnson baby powder caused Mrs. Milliken's ovarian cancer

and death.

Mrs. Milliken, a Pennsylvania citizen at the time of her death, purchased and used Johnson & Johnson baby powder in Pennsylvania. Imerys is a Delaware corporation with its principal place of business in California. Imerys does not own, possess, or lease property in Pennsylvania. It does not have an address, phone number, or bank account in Pennsylvania, and does not sell talc in Pennsylvania for baby powder or ship or distribute talc in Pennsylvania for baby powder. The commercial transactions between Imerys and Johnson & Johnson did not occur in Pennsylvania. Bors admits Imerys' only connection with Pennsylvania arises from its 2007 decision to register to do business as a foreign corporation in Pennsylvania.

II. Analysis

Imerys moves to dismiss for lack of personal jurisdiction or for failure to state a claim. Imerys argues registering as a foreign corporation in Pennsylvania does not constitute consent necessary to invoke personal jurisdiction after the Supreme Court's 2014 evaluation of general personal jurisdiction in Daimler² and specific personal jurisdiction in Walden .³ Conceding the Supreme Court has not addressed personal jurisdiction by consent as continuing to include registering to do business, Imerys asks us to follow the Supreme Court's reasoning and ignore our Court of Appeals' precedent existing before 2014. Alternatively, Imerys moves to dismiss arguing Bors lacks standing under the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") and fails to plead claims for negligent misrepresentation, civil conspiracy or concerted action.⁴ We deny Imerys' motion finding personal jurisdiction based on consent and Bors, albeit barely under Fed.R.Civ.P. 8, states a claim under the UTPCPL and for negligent misrepresentation, civil conspiracy and concerted action.

A. We properly exercise personal jurisdiction based on Imerys' consent .

Bors alleged personal jurisdiction over Imerys based solely on its registration to do business: "[Imerys] is registered to do business as a foreign corporation in the Commonwealth of Pennsylvania, and, in so doing, has subjected itself to the jurisdiction of the courts within this Commonwealth."⁵

Upon being challenged, Bors must establish personal jurisdiction.⁶ To determine whether we have personal jurisdiction, we must ensure the defendant has "certain minimum contacts with [Pennsylvania] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."⁷ Courts can find personal jurisdiction in three ways: consent to general jurisdiction, general jurisdiction, or specific jurisdiction.⁸

Personal jurisdiction may be established through a party's expressed or implied consent.⁹ One way a party can consent to jurisdiction is through "state procedures which find constructive consent to the personal jurisdiction of the state court in the voluntary use of certain state procedures."¹⁰ The law of the state determines whether a corporation consents to the personal jurisdiction of the courts.¹¹

Pennsylvania law imposes a basis for personal jurisdiction over a business if the business qualifies as a foreign corporation in the state.¹² Pennsylvania notifies registrants of the effect of qualifying as a foreign corporation:

The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person ...(2) Corporations (i) Incorporation under or qualification as a foreign corporation under the laws of this Commonwealth (ii) Consent , to the extent authorized by the consent. (iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.

42 Pa.C.S.A. § 5301 (emphasis added).

In Bane v. Netlink, Inc. , our Court of Appeals held the defendant " ‘purposefully avail [ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws' " because the defendant registered to do business in Pennsylvania under the Pennsylvania statute.¹³

Imerys argues we should "overrule" (more specifically ignore) our Court of Appeals' precedent in Bane based on the Supreme Court's 2014 holding in Daimler to find registering as a foreign corporation under Pennsylvania's specific law does not comply with due process guaranteed under the Fourteenth Amendment.¹⁴ In Daimler , the Supreme Court restricted general personal jurisdiction over a foreign corporation to where the corporation was "essentially at home."¹⁵ A corporation is generally "at home" in its principal place of business and its place of incorporation.¹⁶ Imerys is a Delaware corporation with its principal place of business in California.

Imerys argues constructive consent to personal jurisdiction in Pennsylvania after simply registering as a foreign corporation in the Commonwealth runs afoul of the due process guaranteed under the Fourteenth Amendment following the Supreme Court's 2014 decision in Daimler . Citing the Supreme Court's "essentially at home" mandate in Daimler means a foreign defendant's substantial, continuous, and systematic contacts with a state alone is not sufficient to establish personal jurisdiction, Imerys asserts if those contacts are not enough, then registering as a foreign corporation creates a "grasping" form of jurisdiction. Imerys cites multiple cases not applying Pennsylvania's specific registration statute rejecting "jurisdiction by consent" based on a foreign defendant's registration to do business in light of Daimler .¹⁷ We find cases which do not analyze statutes specifically placing foreign corporations on notice of personal jurisdiction are not persuasive.

The ruling in Daimler does not eliminate consent to general personal jurisdiction over a corporation registered to do business in Pennsylvania.¹⁸ The court in Otsuka noted Daimler contained "but one fleeting reference to the concept of jurisdiction by consent."¹⁹ The Supreme Court in Daimler referenced jurisdiction by consent when discussing general jurisdiction to distinguish between "consensual" jurisdiction and "non-consensual bases for jurisdiction," not to "doubt the validity of consent-based jurisdiction."²⁰ In Forest Labs., Inc. v. Amneal Pharm. LLC ,²¹ the Court held Daimler did not overrule "nearly century-old Supreme Court precedent regarding what amounts to voluntary consent to jurisdiction when (1) Daimler never says it is doing any such thing; and (2) what Daimler does say about consent to jurisdiction suggests just the opposite." In Acorda Therapeutics, Inc. v. Mylan Pharm. Inc. ,²² the Court held " Daimler does not eliminate consent as a basis for a state to establish general jurisdiction over a corporation which has appointed an agent for service of process in that state, as is required as part of registering to do business in that state".

A court's exercise of general jurisdiction based on a corporation's consent differs from general jurisdiction established when a corporation is "essentially at home" in the forum state, as described in Daimler .²³ In Acorda Therapeutics , the court held the defendant consented to Delaware jurisdiction because the defendant registered to do business in Delaware.²⁴ The court declined to consider whether the defendant had "minimum contacts" with Delaware because the defendant consented to the district's jurisdiction.²⁵ Ultimately, the court recognized general jurisdiction may be established in showing a corporation is "at home" as explained in Daimler , "or separately general jurisdiction may be established by a...