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Rittinger v. The Davis Clinic

United States District Court, S.D. Texas, Houston Division

March 21, 2018

KAREN A. RITTINGER, Plaintiff,
v.
THE DAVIS CLINIC, et al, Defendants.

          OPINION AND ORDER

          MELINDA HARMON UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Covidien Ltd.'s (“Covidien”) Motion to Dismiss for improper service and lack of personal jurisdiction (Doc. 8). Having considering the motion, response, reply, relevant facts, and applicable law, the Court finds that Plaintiff's claims against Covidien should be dismissed without prejudice.

         Background

         Plaintiff brought suit against both Covidien and Covidien's parent company, Medtronic Inc. (“Medtronic”). These two defendants filed separate motions to dismiss. Medtronic's motion to dismiss for lack of subject matter jurisdiction was granted because the Court found that Plaintiff's claims were barred by the statute of limitations. Doc. 57. Covidien moves to dismiss Plaintiff's complaint against it for improper service and for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(5).

         Standard of Review

         When a defendant files a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of demonstrating that the court has jurisdiction over the defendant. Luv N' Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006), citing Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982).[1] At the pretrial stage of litigation, if the district court does not conduct a hearing on personal jurisdiction, the plaintiff need only present a prima facie case of personal jurisdiction. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.), cert. denied, 513 U.S. 930 (1994); Felch v. Transportes Lar-Mex S.A. DE CV, 92 F.3d 320, 325 (5th Cir. 1996); Johnston v. Multidata Systems Intern. Corp., 523 F.3d 602, 609 (5th Cir. 2008). Proof by preponderance of the evidence is not required. Johnston, 523 F.3d at 609.[2]

         When a defendant disputes factual bases for personal jurisdiction, the district court may consider the record before it, including “affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.” Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338, 344 (5th Cir. 2002) (quoting Thompson v. Chrysler Motors Corp., 755 F.3d 1162, 1165 (5th Cir. 1985)), cert. denied, 540 U.S. 814 (2003); Kelly Law Firm, P.C. v. An Attorney for You, 679 F.Supp.2d 755, 762 (S.D. Tex. 2009). The court has discretion as to the type and amount of discovery it will allow, but unless there is a full and fair hearing, it should not act as a factfinder and must construe all disputed facts in favor of the plaintiff. Walk Haydel, 517 F.3d at 241.

         On a motion to dismiss under Rule 12(b)(2), uncontroverted allegations in plaintiff's complaint are taken as true, and conflicts between facts in the parties' affidavits must be resolved in plaintiff's favor for purposes of the prima facie case of personal jurisdiction. Johnston, 523 F.3d at 609; Kelly Law Firm, 679 F.Supp.2d at 762; Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002). Nevertheless, the court is not required to credit conclusory allegations even if they are uncontroverted. Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001).

         Under the federal rules, except where a federal statute provides for broader personal jurisdiction, the district court's personal jurisdiction is coterminous with that of a court of general jurisdiction of the state in which the district court sits. Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 418 (5th Cir. 2001). See also Wyatt v. Kaplan, 686 F.2d 276, 279 (5th Cir. 1982) (“Under the Federal Rules of Civil Procedure, a federal district court in a diversity case may exercise personal jurisdiction over a defendant residing outside the state in which it sits only to the extent permitted by state law.”). A federal court sitting in diversity may exercise personal jurisdiction over a nonresident defendant if (1) the forum state's long-arm statute confers personal jurisdiction over that nonresident defendant and (2) if the exercise of personal jurisdiction satisfies due process under the United States Constitution. McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009), citing Moncrief Oil Int'l, Inc. v. OAO Gasprom, 481 F.3d 309, 311 (5th Cir. 2007). The Texas long-arm statute, Texas Civil Practice and Remedies Code §§ 17.0421-.045, extends jurisdiction to the limits of federal due process. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990); Gonzalez v. Bank of America Ins. Servs., Inc., No. 11-20174, 2011 WL 6156856 *3 (5th Cir. Dec. 12, 2011), citing Stroman Realty, Inc. v. Antt, 528 F.3d 382, 385 (5th Cir. 2008). “Because the Texas' long-arm statute extends to the limits of federal due process, the two-step inquiry collapses into one federal due process analysis.” Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). Thus a plaintiff in a diversity action in federal court in Texas need only demonstrate that (1) the defendant purposely availed himself of the benefits and protections of the forum state by establishing that the defendant had minimum contacts with the forum state, and (2) the exercise of personal jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Alpine View Co., Ltd. v. Atlas Copco AB, 205 F.3d 208, 214 (5th Cir. 2000); Moncrief Oil Int'l, Inc. v. OAO Gasprom, 481 F.3d 309, 311 (5th Cir. 2007). If the plaintiff fails to establish the existence of minimum contacts with the forum state, the court need not reach the question of whether personal jurisdiction would offend traditional notions of fair play and substantial justice. Renoir v. Hantman's Associates, Inc., 230 Fed.Appx. 357, 360 (5th Cir. 2007).

         Under agency principles, an agent's contacts can be imputed to its principle for purposes of examining personal jurisdiction. Coleman v. Klockner & Co. AG, 180 S.W.3d 577, 588 (Tex. App.-Houston [14th Dist.] 2005), citing Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549 n.4 (Tex. App.-Houston [14th Dist.] 2003, no pet.). “An agent is one who is authorized by a person or entity to transact business or manage some affair for the person or entity.” Coleman, 180 S.W.3d at 588. The key element of an agency relationship is the principal's right to control the means and details of the process by which the agent is to accomplish his task. Id. Whether an agency relationship exists is usually a question of law. Coleman, 180 S.W.3d at 587. Agency is not presumed; the party asserting an agency relationship bears the burden of proving it. Id. at 588. An agency relationship can be established from underlying facts or direct and circumstantial evidence demonstrating the relationship of the parties. Id. Whether a court has personal jurisdiction over a nonresident defendant is a question of law for the court. Moncrief Oil Inter. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2012).

         Analysis

         Defendant Covidien moves to dismiss Plaintiff's Complaint against it for improper service and lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(5). Plaintiff alleges product liability claims against Covidien for strict liability for failure to warn and defective design and negligence related to the use of a surgical stapler, the DST Series™ EEA™ Stapler, during Plaintiff's surgery.

         Covidien argues these claims fail because Covidien is not involved in the design, manufacture, sale, or marketing of the stapler in question. According to Covidien, this Court lacks personal jurisdiction over it because it is not the manufacturer of the product, it has not had minimum contacts with Texas, and the exercise of personal jurisdiction over it would not satisfy due process standards of the United States Constitution. Additionally, as a threshold matter, Covidien argues that Plaintiff's attempt to effectuate service on Covidien was insufficient and Covidien should be dismissed for that reason as well.

         Whether Covidien ...


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