Zofran MDL Jurisdictional Analysis Bounces Non-Missouri Plaintiffs
Stephen McConnell
Over the years we have completed many written evaluations of young associates, and the first category on the form has almost always been "Legal Analysis." That primacy makes sense. If a lawyer does not understand the legal issues, what good is oral or written expression, teamwork, or pretty much anything else? (That being said, it is amazing how business development can cure any perceived weakness of analytical ability). When we do what we usually do on this blog, scrutinizing judicial opinions, we are basically doing a legal analysis of a legal analysis. According to most dictionaries, to analyze something is to separate it into constituent parts. The word "analyze" comes from Greek words "ana" and "lupin" - to unloosen. Analysis picks things apart while synthesis puts things together.
Today's case, In re Zofran Products Liability Litigation, 2016 U.S. Dist. LEXIS 59296 (D. Mass. May 4, 2016), is a nice piece of legal analysis. The court takes a messy case, separates the issues, sequences them logically, and then disposes of each part clearly and succinctly. The case was messy because the plaintiff lawyers made it so, by consolidating claims of four different plaintiffs from four different states: Missouri, Delaware, North Carolina, and Pennsylvania. The case was initially filed in Missouri state court. The defendant removed the case to Missouri federal court, and the case was then transferred to the MDL federal court in Massachusetts. The plaintiff moved to remand the case to state court and the defendant moved to dismiss the claims of the three non-Missouri plaintiffs.
The plaintiffs' argument for remand was that complete diversity did not exist because there was a Delaware plaintiff and a Delaware defendant. The defense response to that was that the Delaware plaintiff was fraudulently joined. This was a debate over subject matter jurisdiction.
Personal jurisdiction was also in play. A transferee court (here, the federal court in Massachusetts) had personal jurisdiction over the defendant only if the transferor court (Missouri) had personal jurisdiction. The defendant argued that there was no personal jurisdiction over it in Missouri, except with respect to the Missouri plaintiff.
The first issue for the court was whether to consider subject matter or personal jurisdiction first. The plaintiffs wanted to begin with subject matter jurisdiction, while the defendant wanted to begin with personal jurisdiction. It turns out that there is no hard and fast rule on priority between the two jurisdictional analyses. Thus, the court did the sensible thing by electing to address the cleaner, simpler issue first. Fraudulent joinder, rightly or wrongly, has become a "rather complicated" issue. By contrast, the personal jurisdiction analysis, taken bit by bit, was straightforward and inevitable, and removed the need to fret over the fraudulent joinder problem.
The Supreme Court's Bauman opinion strikes again. (The beneficence of Bauman is set forth comprehensively in our Bauman checklist.) Personal jurisdiction breaks down into General Jurisdiction (whether the court would have jurisdiction over the defendant for any case, because the defendant is essentially at home in that jurisdiction) and Specific Jurisdiction (whether the court has jurisdiction over the defendant in that specific case because the defendant's conduct touched that jurisdiction in significant, meaningful ways. Here, the defendant neither was incorporated in Missouri nor had its principal place of business there. Absent some extraordinary nexus with Missouri, that means no general personal jurisdiction. The plaintiffs argued that the defendant had consented to Missouri jurisdiction by registering to do business there. While there are some outlier opinions that buy into that view, more and more courts have concluded that such a consent theory would render Bauman a dead letter. The Zofran MDL court held that the consent theory "would distort the language and purpose of the Missouri registration statute" while also running afoul of the Supreme Court precedent. So much for General Jurisdiction.
On Specific Jurisdiction, the "complaint falls far short of anything establishing any nexus between the non-Missouri plaintiffs' claims and GSK's Missouri-based activities." Unlike with the single Missouri plaintiff, "the non-Missouri plaintiffs do not allege that they were prescribed Zofran in Missouri, took Zofran in Missouri, or that their children suffered injuries in Missouri." That means that the claims by the non-Missouri plaintiffs were dismissed for want of personal jurisdiction. The litigation tourists must go home. (As we explained here, recent case law makes clear that pendent jurisdiction cannot prolong the litigation tourists' vacation.)
What is left is the claim by a Missouri plaintiff versus a non-Missouri defendant. That is complete diversity and decides the subject matter jurisdiction issue in favor of the defendant. The case, therefore, was not remanded. Instead, it stayed in federal court in front of a judge who earned high marks for legal analysis.