Livingston v. Hoffmann-La Roche Inc.

• Decision Date: 07 March 2018
• Docket Number: No. 17 C 7650,17 C 7650
• Parties: Stephen LIVINGSTON, Plaintiff, v. HOFFMANN–LA ROCHE INC., Roche Laboratories, Inc., David Shanker, M.D., Dermatology Chicago d/b/a, Dermatology CSI, Lakeshore Surgical Associates, Ltd., Defendants.
• Court: U.S. District Court — Northern District of Illinois

293 F.Supp.3d 760

Stephen LIVINGSTON, Plaintiff,

v.HOFFMANN–LA ROCHE INC., Roche Laboratories, Inc., David Shanker, M.D., Dermatology Chicago d/b/a, Dermatology CSI, Lakeshore Surgical Associates, Ltd., Defendants.

No. 17 C 7650

United States District Court, N.D. Illinois, Eastern Division.

Signed March 7, 2018

John J. MacInerney, Hofeld & Schaffner, Chicago, IL, for Plaintiff.

Sheryl M. Arrigo, Donohue, Brown, Mathewson & Smyth LLC, Roger Littman, Hughes Socol Piers Resnick Dym Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Presently before us is Defendants Hoffman–La Roche Inc. and Roche Laboratories Inc.'s (collectively, the "Roche Defendants") motion to dismiss the claims against them for lack of personal jurisdiction. (Mot. to Dismiss ("Mot.") (Dkt. No. 13).) Plaintiff Stephen Livingston filed this action in the Circuit Court of Cook County, Illinois on May 26, 2017, alleging he suffered personal injuries after ingesting brand-name and generic isotretinoin

, a prescription medication used for the treatment of acne. (See Compl. (Dkt. No. 5–4).) The Roche Defendants removed this case to federal court on October 23, 2017 pursuant to 28 U.S.C. §§ 1332 and 1441, arguing complete diversity exists between Plaintiff and the Roche Defendants, and asserting the remaining defendants have been fraudulently misjoined. (See Notice of Removal (Dkt. No. 1) ¶¶ 5–6.) For the reasons set forth below, we grant the Roche Defendants' motion to dismiss for lack of personal jurisdiction without prejudice.

BACKGROUND

The Roche Defendants manufactured, distributed, and marketed the prescription acne medication Accutane

, the generic name for which is isotretinoin, for use in treating severe recalcitrant nodular acne. (Notice of Removal ¶ 7.) Hoffman–La Roche Inc. is a corporation incorporated under the laws of the state of New Jersey with its principal place of business in New Jersey. (Id. ¶ 26.) Roche Laboratories Inc. is incorporated under the laws of the state of Delaware with its principal place of business in New Jersey. (Id. ¶ 27.)

Plaintiff alleges he was prescribed and took Accutane

to treat his acne in 1999 and 2004. (Compl. at 1–8.) He received two Accutane prescriptions in 1999 from physicians in Oshkosh, Wisconsin, where he also filled his prescriptions and received medical care. (See Mot. at 3; see also Notice of Removal ¶ 8; Compl. at 2.) Plaintiff was again prescribed Accutane in 2004 by his physician in Columbus, Ohio, where he resided at the time. (Mot. at 4; see also Notice of Removal ¶ 8; Compl. at 6.) Although not at issue in this lawsuit, he also received isotretinoin in 2004 in the form of Amnesteen, a generic version of isotretinoin

manufactured by Mylan Bertek Pharmaceuticals, Inc. (Notice of Removal ¶ 8.)

In 2003, Plaintiff developed a gastrointestinal condition known as inflammatory bowel disease

. (Id. ¶ 10.) By 2005, his disease had progressed such that he had a surgical procedure to remove his colon. (Id. ) Plaintiff alleges the Roche Defendants defectively manufactured and designed Accutane"in a way that when properly used as prescribed could cause inflammatory bowel disease in patients without a prior history of intestinal disorders." (Compl. at 3–8.) He also asserts the Roche Defendants failed to warn physicians and patients of the risk of developing inflammatory bowel disease associated with using Accutane. (Id. )

After receiving two courses of treatment of Accutane

and after having surgery to remove his colon, Plaintiff moved to Illinois in 2006. (Mot. at 4.) In 2007, Plaintiff received a prescription for generic isotretinoin in the form of Claravis. (See Compl. at 10–11; Mot. at 4.) Plaintiff alleges he was prescribed Claravis by Defendant David Shanker, M.D. (Compl. at 10.) Dr. Shanker was employed at the time by Defendants Dermatology CSI d/b/a Dermatology Chicago and Lakeshore Surgical Associates, Ltd., all of whom are citizens of Illinois. (Id. at 4; Notice of Removal ¶¶ 9, 28–30.) Plaintiff alleges the Physician Defendants negligently prescribed isotretinoin, because they should have known that it was contraindicated for Plaintiff given his medical history. (Compl. at 9.) Plaintiff also alleges the Physician Defendants failed to advise of the risks, dangers, and symptoms associated with the use of isotretinoin. (Id. )

Plaintiff filed this action in the Circuit Court of Cook County, Illinois on May 26, 2017.¹ Plaintiff's complaint asserts four separate claims against the Roche Defendants for strict liability and negligence relating to the allegedly defective design and inadequate labeling of Accutane

. (Id. at 1–8.) Plaintiff also alleges a medical negligence claim against the Physician Defendants, contending they negligently prescribed Claravis in 2007. (Id. at 9–11.) The Roche Defendants were served with the complaint on September 21, 2017. (Notice of Removal ¶ 22.) No proceedings took place in the state court proceeding before the Roche Defendants removed the case to federal court on October 23, 2017. (Id. ¶ 21.) Plaintiff was served with written notice of the removal, and the Roche Defendants filed a copy of the Notice of Removal with the Circuit Court of Cook County, Illinois. (Id. ¶ 56.)

On December 8, 2018, the Roche Defendants filed the instant motion to dismiss for lack of personal jurisdiction. (See Mot. at 1–2.) They contend that they are neither "at home" in Illinois, nor has Plaintiff alleged any substantial connection between the Roche Defendants' alleged injurious conduct and the forum. (Id. ) They argue Plaintiff was not prescribed Accutane

in Illinois, he did not use Accutane in Illinois, he was not injured by Accutane

in Illinois, and his claims do not arise out of any alleged activity by the Roche Defendants in Illinois. (Id. ) Accordingly, the Roche Defendants assert they are not subject to personal jurisdiction in Illinois, and we should dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(2). (Id. )

On December 20, 2017, we entered a briefing schedule on the Roche Defendants' motion to dismiss. (Dkt. No. 15.) Plaintiff's response brief was due by January 8, 2018, and the Roche Defendants' reply brief was due by January 18, 2018. (Id. ) On January 18, 2018, with no response having been filed, the Roche Defendants filed a reply brief. (Dkt. No. 16.) To date Plaintiff has neither filed a response brief nor moved for an extension of time to do so.

LEGAL STANDARD

If a court lacks personal jurisdiction over a party to an action, it must dismiss the case as to that party. Fed. R. Civ. P. 12(b)(2). A complaint need not include facts alleging personal jurisdiction, but when a defendant moves to dismiss under Rule 12(b)(2), the plaintiff bears the burden of demonstrating personal jurisdiction over the defendant. N. Grain Mktg., LLC v. Greving , 743 F.3d 487, 491 (7th Cir. 2014) ; Purdue Research Found. v. Sanofi–Synthelabo, S.A. , 338 F.3d 773, 782 (7th Cir. 2003). In determining whether personal jurisdiction exists, we accept all well-pleaded allegations in the complaint as true. Felland v. Clifton , 682 F.3d 665, 672 (7th Cir. 2012). The court may consider affidavits or other evidence in opposition to or in support of its exercise of jurisdiction. Purdue Research , 338 F.3d at 783. "[O]nce the defendant has submitted affidavits or other evidence in opposition to the exercise of jurisdiction, the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction." Id. We resolve factual disputes in the plaintiff's favor, but unrefuted assertions by the defendant will be accepted as true. GCIU–Emp'r Ret. Fund v. Goldfarb Corp. , 565 F.3d 1018, 1020 n.1 (7th Cir. 2009).

ANALYSIS

Plaintiff failed to file a response brief opposing the Roche Defendants' motion to dismiss, and he has not filed anything in this court during the more than four months since it was removed. Defendants' motion is therefore unopposed. For the reasons that follow, the Roche Defendants' motion to dismiss for lack of personal jurisdiction is well-supported and will be granted.

I. SUBJECT MATTER JURISDICTION

The Roche Defendants allege this matter was properly removed pursuant to 28 U.S.C. § 1441 because there is "complete diversity of citizenship between Plaintiff and the properly joined Roche Defendants," and the amount in controversy requirement is satisfied under 28 U.S.C. § 1332. (Notice of Removal ¶ 23.) They argue that although the Physician Defendants are citizens of Illinois, their citizenship should be disregarded for purposes of diversity jurisdiction under the fraudulent misjoinder doctrine. (Id. ¶¶ 24–31.) The Roche Defendants contend Plaintiff fraudulently misjoined the medical negligence claims against the Physician Defendants relating to Plaintiff's Claravis prescription with the unrelated products liability claims against the Roche Defendants relating to Plaintiff's ingestion of Accutane

. (Id. ¶ 32.)

"Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter, but there are circumstances in which a district court appropriately accords priority to a personal jurisdiction inquiry." Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 578, 119 S.Ct. 1563, 1567, 143 L.Ed.2d 760 (1999) ; see also Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens , 529 U.S. 765, 779, 120 S.Ct. 1858, 1866, 146 L.Ed.2d 836 (2000) (stating without personal jurisdiction, the court is powerless to proceed to adjudication). Federal district courts thus have discretion to dismiss a removed case for lack of personal jurisdiction without first making a subject-matter jurisdiction determination. Ruhrgas AG , 526 U.S. at 578, 119 S.Ct. at 1567 ; see also Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc. , 751 F.3d 796, 800 (7th Cir. 2014) (explaining federal courts are "entitled to entertain a threshold non-merits question, such as personal jurisdiction, at the outset of a case")....