Photo of Michelle Yeary

This post is from the non-Reed Smith side of the blog.

Talking about being “at home” has a new meaning this year and no doubt we all would really enjoy some changed scenery about now.  This blogger used the Thanksgiving holiday weekend to merr-ify her surroundings.  Allowing decorating for the holidays to spill over into “the office.”  There are bows and ribbons, a cheery snow globe, and maybe just a twinkling light or two (hundred).  That’s a positive.  On the negative side, we used to ship a lot of stuff to our office this time of year to keep it out of sight.  But deliveries to “the office” now land on the front porch.  Which also means, prying eyes (both young and old) have started to see those boxes and there really is no hiding them.  Various shapes and sizes.  Some light, some heavy.  There they sit, absolutely within reach but yet so unattainable.  It’s almost cruel.  It’s definitely a little funny.  Most of all it feels apropos for this year.  Where everything just feels a little bit out of reach.

Which is what the defendant was in Fernandez v. Abbott Labs, 2020 U.S. Dist. LEXIS 221565 (S.D. Fla. Nov. 24, 2020) – out of reach.  Plaintiff alleged she suffered an injury from two medical devices manufactured and sold by the defendant.  Both devices were designed, manufactured, and marketed by a separate entity that was acquired by the defendant in 2017.  Id. at *4. To establish personal jurisdiction under Florida’s long-arm statute, plaintiff would need to demonstrate that the defendant either “committed a tortious act within Florida or caused an injury to  her in Florida arising out of an act outside of the state.”  Id.  But plaintiff could not refute that the merger agreement between the predecessor and successor companies did not provide that defendant assumed any prior product liability.  Id.

So, plaintiff instead argued that the corporate acquisition falls into an exception to successor liability because defendant is a “mere continuation” of the prior company.  However, continuation does not turn on whether the business continues.  It depends entirely on corporate structure – a common identity of officers, directors, and stockholders.  Plaintiff offered no evidence as to the corporate structure of either company.  Therefore, because defendant did not manufacturer or sell the medical devices and did not assume liabilities of the entity that did, plaintiff cannot establish specific personal jurisdiction.  Or liability anywhere else for that matter.   The court did not reach the due process question because plaintiff failed to establish any act to confer jurisdiction under the long arm statute.

Plaintiff’s last grasp was to argue that the court could exercise general jurisdiction because the defendant conducts business in Florida.  Unlike most of us, defendant was able to argue it was not “at home.”  Abbott is an Illinois citizen and therefore, not at home in Florida.  Plaintiff did not counter defendant’s position with any “affirmative support” for her personal jurisdiction allegations.  She merely relied on the allegations of her complaint which is insufficient.  Id.  at *6-7.  No general jurisdiction either.   Case dismissed.