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Manning v. Portland Orthopaedics Ltd.

United States District Court, D. New Mexico

November 9, 2018

DALE MANNING and SHARON MANNING, Plaintiffs,
v.
PORTLAND ORTHOPAEDICS LIMITED, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

         This matter is before the Court on Defendant Symmetry Medical Inc.'s Rule 12(b)(2) Motion to Dismiss, filed on April 5, 2018. (Doc. 16.) Having considered the motion, briefs, and relevant law, the Court finds that the motion should be granted.

         Plaintiff Dale Manning (Mr. Manning), a resident of New Mexico, received a total left hip replacement in 2009 at a medical facility in Arizona. The hip prosthesis, known as the M-COR Hip System, contained a component that had been shown to be susceptible to fatigue failures since at least 2008. Defendant Symmetry Medical Inc. (Symmetry) manufactured femoral neck components, which are a part of the M-COR Hip System (M-COR) prone to failure. Plaintiffs allege that Defendants, including Symmetry, had notice of multiple failures of M-COR devices and knew or should have known that these components were defective and unsafe for use at the time of Mr. Manning's hip replacement procedure. Symmetry, which is incorporated in Delaware with its principal place of business in Indiana, moves to dismiss for lack of personal jurisdiction.

         I. Factual Background

         On December 2, 2009, Mr. Manning's treating surgeon implanted an M-COR into Mr. Manning's left hip. (Doc. 1 (Compl.) ¶¶ 21, 71.) While Mr. Manning was (and still is) a resident of New Mexico, he traveled to Arizona for the procedure. (Id. ¶¶ 3, 21, 71.) In late 2015, Mr. Manning was at home in New Mexico when the M-COR fractured and failed prematurely. (Id. ¶¶ 75, 78.) Mr. Manning had to have the M-COR replaced with a second hip prosthesis, and both Plaintiffs have suffered injuries and damages because of the M-COR's premature failure. (Id. ¶¶ 79-80, 161-66.)

         Symmetry manufactured femoral neck components-part of the M-COR that allegedly failed.[1] (See Docs. 16 at 2; 18 at 1-2.) Symmetry made the “femoral neck components pursuant to detailed and modified written specifications provided by Portland Orthopaedics, Inc. (Portland)” (Doc. 16 at 2), which is a corporation that served “as the United States affiliate or subsidiary of” Portland Orthopaedics Limited (Portland Ltd.) (see Compl. ¶¶ 5, 6). Portland Ltd. and Portland manufacture and distribute the M-COR System and are also defendants in this lawsuit. (See Compl. ¶¶ 5, 6; see also Doc. 16 at 2-3.) Portland Ltd. is “a foreign corporation existing under the laws of Australia with its principal place[s] of business” in Australia and Minnesota (Compl. ¶ 5), and Portland is incorporated and has its principal place of business in Minnesota (id. ¶ 6). Symmetry shipped the femoral neck components to Portland Ltd.'s Australia facility. (Doc. 16 at 3.)

         Symmetry is a resident of Delaware (where it is incorporated) and Indiana (where it has its principal place of business). (Compl. ¶ 7.) Symmetry submitted the declaration of Mr. Steve Hinora, the Executive Vice President, Quality and Regulatory, for Tecomet, Inc., the company that acquired Symmetry in 2014. (See Doc. 16-1 ¶ 1.) Mr. Hinora has been employed by Symmetry and/or Tecomet, Inc. since 1988.[2] (See Id. ¶ 3.) Mr. Hinora examined Symmetry's corporate records from 2001 to the present and attested that Symmetry has never: “been involved in the marketing, advertising, sale, or distribution of the [M-COR] System”; “designed, manufactured, marketed, or advertised its products in the State of New Mexico”; “solicited business from any customers or entities in New Mexico”; “sold or shipped its products to customers in New Mexico”; “received revenues from a New Mexico customer”; “offered services or other assistance regarding its products to customers in New Mexico”; “registered to do business” in New Mexico; “had a registered agent in the State of New Mexico”; nor “had a place of business, offices or other operations, employees in residence, bank accounts, or real property in the State of New Mexico.” (Id. ¶¶ 4, 10-16.)

         Plaintiffs submitted an image of Symmetry's website from 2007, which describes Symmetry as “a global market leader . . . [w]ith 20 strategically located facilities throughout the United States and Europe . . . .” (See Doc. 18-B.) Plaintiffs also submitted Symmetry's 2013 Form 10-K Annual Report, which indicates that Symmetry “conduct[ed] business with ‘virtually every hospital in the [United States]” and had “intentions of ‘cross selling' products to its existing customers.” (See Doc. 18-C at 3, 4.)

         II. Legal Standard

         “Motions to dismiss brought under Federal Rule of Civil Procedure 12(b)(2) test a plaintiff's theory of personal jurisdiction as well as the facts supporting personal jurisdiction. . . . When a defendant challenges the court's jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction exists.” Davis v. USA Nutra Labs, No. CV 15-01107 MV/SCY, 2016 WL 9774945, at *3 (D.N.M. Dec. 21, 2016) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995)). “Plaintiff's burden is light in the early stages of litigation before discovery.” Arnold v. Grand Celebration Cruises, LLC, No. CV 17-685 JAP/KK, 2017 WL 3534996, at *3 (D.N.M. Aug. 16, 2017) (citing Wenz, 55 F.3d at 1505).

         “[W]here there is no evidentiary hearing and the jurisdictional question is decided on the parties' affidavits and written materials, Plaintiff need only make a prima facie showing of personal jurisdiction.” Id. (citing Wenz, 55 F.3d at 1505). “The plaintiff may make the required prima facie showing by coming forward with facts, via affidavit or other written materials, that would support jurisdiction over the defendant if true.” Davis, 2016 WL 9774945, at *3 (citing OMI Holdings v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998)). “The Court accepts as true all well-pleaded facts (that are plausible, non-conclusory, and non-speculative) alleged by Plaintiff unless Defendant controverts those facts by affidavit.” Arnold, 2017 WL 3534996, at *3 (citing Shrader v. Biddinger, 633 F.3d 1235, 1248 (10th Cir. 2011)). “The Court resolves factual disputes in the parties' affidavits in Plaintiff's favor.” Id. (citing Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008)).

         III. Discussion

         “The Fourteenth Amendment's Due Process Clause requires that a defendant be subject to a court's personal jurisdiction before a judgment can be rendered against it.” Davis, 2016 WL 9774945, at *3 (citing World-Wide Volkswagen v. Woodson, 444 U.S. 286, 301 (1980)). “To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment.” Id. (quoting Far W. Capital, Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995) (internal citation omitted)).

         “In New Mexico, a federal court has personal jurisdiction over a nonresident defendant only to the extent that the state's long-arm statute permits.” Id. (citing Fid. & Cas. Co. v. Phila. Resins Corp., 766 F.2d 440, 442 (10th Cir. 1985), cert. denied, 474 U.S. 1082 (1986)). New Mexico's long-arm statute “‘extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible,' such that jurisdiction is authorized by the long-arm statute only if it is permitted under the Due Process Clause.” Id. (quoting Tercero v. Roman Catholic Diocese, 48 P.3d 50, 54 (N.M. 2002) (internal citation omitted); citing Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006)). “To satisfy Due Process requirements, the defendant must have (1) sufficient minimum contacts with the forum state (2) such that the maintenance of the suit does not offend ‘traditional notions of ...


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