Bexis is going to have to give up saying that nothing good ever comes out of Missouri, because for the second time in just a few months we are reporting on a well-reasoned opinion from Missouri that comes to the right result for the right reasons. In Fullerton v. Smith & Nephew, Inc., No. 1:18-cv-245, 2019 U.S. Dist. LEXIS 77350 (E.D. Mo. May 8, 2019), the district court dismissed all claims against a Tennessee-based medical device manufacturer on the basis that the Missouri-based court lacked personal jurisdiction.
There are a couple of interesting things about this order. But first, what happened? The plaintiff underwent a hip procedure in Arkansas using the defendant’s device, and the hardware allegedly failed, resulting in a second procedure to remove the device. Id. at *2. The defendant was a citizen of Delaware and Tennessee, but the plaintiff sued in Missouri. Id. at *2-*3. The plaintiff was a Missouri resident, so this is not a case of blatant litigation tourism that Missouri’s courts see all too often.
Regardless, because the defendant was not “at home” in Missouri and because there was no nexus between the tort and Missouri, the defendant moved to dismiss for lack of personal jurisdiction. Id. at *3.
It was undisputed that the court did not have general jurisdiction over the defendant because Missouri was not the defendant’s home state. Id. at *5. The plaintiff therefore offered up two theories of specific jurisdiction: First, the plaintiff asserted that the court had specific jurisdiction because the defendant sought to do business in Missouri by registering to do business with the Missouri Secretary of State. Second, the plaintiff argued that although the device was implanted in Arkansas, the tort occurred in Missouri, where the device allegedly malfunctioned. Id. at *5.
The district court rejected both arguments, and there are two points that we would emphasize. First, although the plaintiff attempted to base specific jurisdiction on the defendant’s registration with the Missouri Secretary of State, he acknowledged that registering to do business and maintaining a registered agent alone do not create personal jurisdiction. Id. at *8. Corporate registration is often asserted as a basis for general jurisdiction, but the Missouri Supreme Court has already rejected that position. The plaintiff in Fullerton therefore added that the defendant “has a long standing history of conducting business in Missouri and sells an ‘enormous amount’ of products in Missouri on a daily basis.” Id. at *9.
Do those alleged facts sound familiar? They should, because those were the facts in the U.S. Supreme Court’s landmark case on specific jurisdiction, BMS v. Superior Court, 137 S. Ct. 1773 (2017). The defendant in BMS allegedly sold lots of product in California for patients other than the plaintiffs. But according to the U.S. Supreme Court, even a defendant’s “extensive forum contacts” cannot support specific jurisdiction if they are unrelated to the plaintiff’s claims. Id. Any other approach would resemble a “loose and spurious form of general jurisdiction.” Id.
The district court in Fullerton followed BMS and rejected specific personal jurisdiction based on the defendant’s allegedly “enormous amount” of unrelated business in Missouri:
Simply stating that a company marketed, promoted, and sold a product in Missouri does not establish specific jurisdiction. Indeed, “[t]he inquiry into specific jurisdiction does not focus on Plaintiff’s contacts with the forum state, but Plaintiff’s injury must be connected to Defendant’s contacts with the forum state.”
Id. at *9-*10 (citing cases including Keeley v. Pfizer, Inc., No. 4:15CV00583 ERW, 2015 U.S. Dist. LEXIS 85282, 2015 WL 3999488, at *3 (E.D. Mo. July 1, 2015)). That is where the plaintiff’s case for specific jurisdiction failed: It was not relevant that the defendant sold products for other patients in Missouri. The defendant had to have sold the plaintiff’s product in Missouri.
Bexis recently proposed a simple test to determine specific jurisdiction under BMS: If the claimed forum contact could be asserted by any plaintiff, no matter where that plaintiff resides, was injured, etc., then it’s not the kind of contact that makes a claim “arise from” or “relate to” the forum state. The plaintiff’s alleged forum contacts in Fullerton fail this test spectacularly. Anyone, anywhere could assert that the defendant sells “an enormous amount” of product in Missouri. That, however, is not relevant. The plaintiff had to come up with “case-linked” Missouri contacts, and he could not.
That leads to the second interesting part of the Fullerton order. This plaintiff argued also that the product was implanted in Arkansas, but that it allegedly malfunctioned in Missouri, which meant that a tort was committed in Missouri. Nice try, but what does that have to do with the Defendant’s forum contacts? “While Plaintiff maintains that he was a resident of Missouri when the tort occurred, the medical device at issue was manufactured in Tennessee, shipped to Arkansas, sold in Arkansas, and implanted in Arkansas.” Id. at *10. In other words, the complaint was devoid of any specific facts indicating that the plaintiff’s claim “arises out of and relates to the Defendant’s activities in the State of Missouri.” Id. at *10-*11.
In the end, “[n]one of the facts alleged by Plaintiff connect [the defendant’s] conduct in Missouri to Plaintiff’s injury.” Id. at *11. The court therefore lacked personal jurisdiction. As we said at the outset, the right result for the right reasons.