United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE.
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
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.
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.)
manufactured femoral neck components-part of the M-COR that
allegedly failed. (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.)
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. (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.)
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,
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).
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)).
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)).
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