Bors v. Johnson & Johnson
Bors v. Johnson & Johnson
Opinion of the Court
MEMORANDUM
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 & Johnson
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 20Í4 evaluation of general personal jurisdiction in Daimler
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.”
Upon being challenged, Bors must establish personal jurisdiction.
Personal jurisdiction may be established through a party’s expressed or implied consent.
Pennsylvania law imposes a basis for personal jurisdiction over a business if the business qualifies as a foreign corporation in the state.
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.
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.
Imerys argues constructive consent to personal jurisdiction in Pennsylvania after
The ruling in Daimler does not eliminate consent to general personal jurisdiction over a corporation registered to do business in Pennsylvania.
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
Following Daimler, courts in our Circuit have reached different outcomes in deciding whether “jurisdiction by consent” contradicts the due process concerns of fair play and substantial justice raised in Daimler. Applying Delaware law, the District of Delaware held Daimler “was limited to the conclusion that continuous and systematic contacts, by themselves, were not enough to establish general personal jurisdiction” and “offered no guidance on acceptable criteria for jurisdiction by consent.”
While the Third Circuit has not addressed whether “jurisdiction by consent” still establishes personal jurisdiction by consent following Daimler under the Pennsylvania statute, courts have distinguished Pennsylvania’s specific notice statute in comparing other states’ statutes. The Second Circuit “differentiat[ed] Connecticut’s registration statute from others that have been definitely construed to convey a foreign corporation’s consent to general jurisdiction.”
Pennsylvania’s statute specifically advises the registrant of the jurisdictional effect of registering to do business. In 2007, long after Pennsylvania enacted its specific notice statute and after our Court of Appeals confirmed personal jurisdiction based on registration, Imerys elected to register to do business in Pennsylvania as a foreign corporation. Imerys’ compliance with •Pennsylvania’s registration statute amounted to consent to personal jurisdiction.
Consent remains a valid form of establishing personal jurisdiction under the Pennsylvania registration statute after Daimler. The Supreme Court did not eliminate consent. Parties can agree to waive challenges to personal jurisdiction by agreements in forum selection clauses or, as here, by registering to do business under a statute which specifically advises the registrant of its consent by registration. We do not see a distinction between enforcing a forum selection clause waiving challenges to personal jurisdiction and enforcing a corporation’s choice to do business in the Commonwealth. Imerys does not, and cannot, claim prejudice from its known choice to register in Pennsylvania.
As Bors admittedly claims jurisdiction based solely on consent arising from the 2007 registration to do business, we need not address whether we could exercise non-consensual jurisdiction over Imerys under principles of general or specific jurisdiction.
B. Bors adequately pleads claims against Imerys.
To determine whether a defendant’s motion to dismiss should be granted, courts must first disregard any legal conclusions and must then determine whether the facts alleged in the complaint are enough to show the Bors has a plausible claim for relief.
1. Bors has standing under the Trade Practices Act.
Imerys moved to dismiss violations of Pennsylvania’s UTPCPL because Mrs. Milliken did not have any commercial dealings with Imerys and did not purchase product from Imerys. Mrs. Milliken must have suffered an ascertainable loss as a result of an unfair or deceptive act, and “must also be a person who made a purchase for personal, family, or household purposes.”
2. Bors states a claim for negligent misrepresentation.
Bors asserts a claim against all Defendants for negligent misrepresentation. Under Pennsylvania law, the tort of negligent misrepresentation has been interpreted to require Bors to plead: (1) a misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend the representation to induce another to act on it; and (4) injury must result to the party acting in justifiable reliance on the misrepresentation.”
Courts are split whether Rule 9(b) with heightened pleading requirements for fraud or mistake apply to negligent misrepresentation claims.
Under either Rule 9(b) or the lower pleading standard, Bors alleges sufficient facts to state a claim for negligent misrepresentation. Bors alleges “Defen
3. Bors states a claim for civil conspiracy.
Imerys argues Bors did not offer sufficient factual detail to support a civil conspiracy claim because she used conclusory language to allege Imerys attempted to hide medical data. Bors has pled sufficient facts alleging civil conspiracy, even under the rule of law cited by Imerys.
A civil conspiracy claim must plead “the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose.”
Bors alleges two participants in this conspiracy: Johnson & Johnson and Imerys. Bors defines Imerys’ role in providing the talc to co-defendant Johnson & Johnson. Imerys placed a warning on the material safety data sheets for the talc. Bors alleges Imerys knew of the risks in talc and failed to inform their customers. While the use of the collective “defendants” is inartful, when we are addressing two defendants comprised of a supplier and seller, we can fairly draw inferences from the alleged behavior of each Defendant in their alleged
4. Bors states a claim for concerted action.
Imerys argues Bors did not plead facts to support a claim of concerted action. Pennsylvania follows Section 876 of the Restatement (Second) of Torts defining the elements of a concerted action claim providing an individual is liable under a concerted action claim when the individual “does a tortious act in concert with the other or pursuant to a common design with him, or ... knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or ... gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”
Bors alleges sufficient facts of concerted action: all Defendants knew the baby powder should have contained a warning about a risk of gynecological cancer.
III. Conclusion
Imerys chose to register to do business in Pennsylvania in 2007, years after Pennsylvania enacted its corporate registration statute specifically advising entities of personal jurisdiction arising from their registration to do business. We find, at a minimum, constructive consent to personal jurisdiction over Imerys in Pennsylvania. In the accompanying Order, we also deny Imerys’ motion to dismiss as we find Bors sufficiently pleads claims for Pennsylvania’s UTPCPL claim, negligent misrepresentation, conspiracy and acting in concert. Bors sufficiently meets Rule 8’s pleading requirements but we expect substantially more specificity after discovery.
. The other defendants are Johnson & Johnson and its subsidiary Johnson & Johnson Consumer Companies, Inc. These related Defendants also moved to partially dismiss the conspiracy and acting in concert claims. (ECF Doc. No. 22). We also dismiss their motion to dismiss today based on the reasoning in this Memorandum and because their arguments
. Daimler AG v. Bauman, - U.S. -, 134 S.Ct. 746, 761, 187 L.Ed.2d 624 (2014).
. Walden v. Fiore, - U.S. -, 134 S.Ct. 1115, 1118, 188 L.Ed.2d 12 (2014).
.(ECF Doc. No. 21).
. (ECF Doc. No. 4).
. D’Jamoós ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citing Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 436 (3d Cir. 1987)).
. Id.
. See Am. Fin. Capital Corp. v. Princeton Elecs. Prod., No. 95-4568, 1996 WL 131145, at *3 (E.D. Pa. Mar. 20, 1996).
. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-04, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).
. Id. at 704, 102 S.Ct. 2099.
. Acorda Therapeutics, Inc. v. Mylan Pharm. Inc., 78 F.Supp.3d 572, 584 (D.Del. 2015), aff'd, 817 F.3d 755 (Fed.Cir. 2016).
. Bane v. Netlink, Inc., 925 F.2d 637, 641 (3d Cir. 1991).
. Bane, 925 F.2d at 640 (3d Cir. 1991) (concluding a foreign corporation consents to be sued in Pennsylvania courts after registering to do business in Pennsylvania). See also RX Returns, Inc. v. PDI Enterprises, Inc., No. 97-1855, 1997 WL 330360, at *2 (E.D. Pa. June 6, 1997) (recognizing the Third Circuit "flatly held that when a foreign corporation registers to do business in Pennsylvania, a court may constitutionally exercise jurisdiction over that defendant pursuant to 42 Pa.C.S.A. § 5301 (a)(2)(i)").
. ECF Doc. No. 21.
. Daimler, 134 S.Ct. at 761; Chavez v. Dole Food Co., Inc., No. 13-4144, 836 F.3d 205, 223, 2016 WL 4578641, at *13 (3d Cir. Sept. 2, 2016) (quoting Daimler, 134 S.Ct. at 761).
. Daimler, 134 S.Ct. at 761.
. See e.g. Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016) (holding interpreting registration statute as corporate consent to general jurisdiction is limited by federal due process rights); Chatwal Hotels & Resorts, LLC v. Dollywood Co., 90 F.Supp.3d 97, 105 (S.D.N.Y. 2015) (“being registered to do business is insufficient to confer general jurisdiction in a state that is neither its state of corporation or its principal place of business"); Astrazeneca AB v. Mylan Pharms., Inc., 72 F.Supp.3d 549, 556 (D. Del. 2014) (holding compliance with registration statutes that are mandatory for doing business in the state cannot constitute consent to jurisdiction following Daimler).
. See Otsuka Pharm. Co., 106 F.Supp.3d 456, 468 (D.N.J. 2015).
. Id. The Supreme Court in Daimler distinguished between consensual and non-consensual jurisdiction: “"[The Court's] 1952 decision in Perkins v. Benguet Consol. Mining Co. remains the textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.”” Daimler AG, 134 S.Ct. at 755-56 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 927, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011)).
. Daimler, 134 S.Ct. at 755-56.
. Forest Laboratories, Inc. v. Amneal Pharm. LLC, No. 14-508-LPS, 2015 WL 880599, at *13 (D. Del. Feb. 26, 2015), report and recommendation adopted, No. 14-508, 2015 WL 1467321 (D. Del. Mar. 30, 2015).
. 78 F.Supp.3d 572, 587 (D. Del. 2015), aff'd, 817 F.3d 755 (Fed. Cir. 2016).
. Acorda Therapeutics, Inc., 78 F.Supp.3d at 589.
. Id. at 587.
. Id. at n. 12.
. Pfizer Inc. v. Mylan Inc., No. 15-26, 2016 WL 1319700, at *10 (D. Del. Apr. 4, 2016). We are aware another judge applying Delaware Law held compliance with Delaware’s business registration statute does not constitute consent to jurisdiction. AstraZeneca AB v. Mylan Pharm., Inc., 72 F.Supp.3d 549, 556 (D. Del. 2014), motion to certify appeal granted sub nom. Astrazeneca AB v. Aurobindo Pharma Ltd., No. 14-664, 2014 WL 7533913 (D. Del. Dec. 17, 2014), and aff'd sub nom. Acorda Therapeutics Inc., 817 F.3d at 755 (noting Delaware statute requires foreign corporations to register to do business in the state). See also Display Works, LLC v. Bartley, No. 16-583, 182 F.Supp.3d 166, 175, 2016 WL 1644451, at *6 (D.N.J. Apr. 25, 2016).
. Acorda Therapeutics Inc., 817 F.3d 755 (holding company not registered to do business in Delaware did not consent to personal jurisdiction).
. Brown v. Lockheed Martin Corp., 814 F.3d 619, 637 (2d Cir. 2016).
. See id. (contrasting Connecticut’s statute, which does not give a business notice registering will establish personal jurisdiction). The District of New Jersey also distinguished New Jersey’s registration statute from Pennsylvania’s statute.
. Display Works, LLC, 182 F.Supp.3d at 175, 2016 WL 1644451, at *6.
. Id. (holding New Jersey’s registration and service statutes do not establish jurisdiction by consent).
. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
. Balderston v. Medtronic Sofamor Danek, Inc., 152 F.Supp.2d 772, 776 (E.D. Pa. 2001), aff'd, 285 F.3d 238 (3d Cir. 2002).
. Kemezis v. Matthews, 394 Fed.Appx. 956, 959 (3d Cir. 2010).
. Duffy v. Lawyers Title Ins. Co., 972 F.Supp.2d 683, 694 (E.D. Pa. 2013).
. (ECF Doc. No. 19, ¶ 122).
. (Id., ¶ 126).
. (Id., ¶ 134).
. Williams Controls, Inc. v. Parente, Randolph, Orlando, Carey & Associates, 39 F.Supp.2d 517, 529-30 (M.D. Pa. 1999).
. "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Although allegations of time, date or place satisfy the particularity requirements, a plaintiff can also satisfy the pleading requirements by pleading with a "degree of precision or some measure of substantiation into the fraud allegation.” Bionix Dev. Corp. v. Sklar Corp., No. 07-4465, 2009 WL 3353154 (E.D. Pa. Oct. 14, 2009).
. Cogswell v. Wright Med.Tech, Inc., No. 15-295, 2015 WL 4393385, at *5 (W.D. Pa. July 16, 2015) (declining to apply Rule 9(b)’s heightened pleading standard to negligent misrepresentation claim); Kramme v. Zimmer, Inc., No. 11-916, 2015 WL 4509021, at *5 (M.D. Pa. July 24, 2015) (applying pleading requirements of Rule 9(b) to negligent misrepresentation); Sims v. Viacom, Inc., No. 09-35821, 2009 WL 3856667 (E.D. Pa. Nov. 17, 2009).
. See Cogswell, 2015 WL 4393385, at *5 (collecting cases).
. McLaughlin v. Bayer Corporation, et al., No. 14-7315, 172 F.Supp.3d 804, 828-29, 2016 WL 1161578, at *16 (E.D. Pa. March 22, 2016).
. Shapiro v. UJB Fin. Corp., 964 F.2d 272 (3d Cir. 1992)
. (ECF Doc. No. 19,11139).
. (Id, ¶ 142).
. (Id., ¶106).
. (Id., ¶ 143).
. Imerys argues Bors’ conspiracy claim does not include a single individualized statement to any Defendant. Citing Indianapolis Life Ins. Co. v. Hentz, No. 06-2152, 2008 WL 4453223, at *11 (M.D. Pa. Sep. 30, 2008), Imerys argues “[i]n a case involving multiple defendants, each defendant in entitled to be apprised of the roles they each played in the alleged scheme.”
. ITP, Inc. v. OCICo., Ltd., 865 F.Supp.2d 672, 684 (E.D. Pa. 2012).
. (ECF Doc. No. 19, ¶148).
. (Id.).
. (Id.).
. (Id.).
. Jung v. Assoc., of American Medical Colleges, 300 F.Supp.2d 119, 157-58 (D.D.C. 2004).
. In re Asbestos Sch. Litig., 46 F.3d 1284, 1293 (3d Cir. 1994).
. (ECF Doc. No. 19, ¶ 153)
Reference
- Full Case Name
- Nancy BORS v. JOHNSON & JOHNSON
- Cited By
- 24 cases
- Status
- Published