United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS GETINGE USA'S AND MAQUET'S
MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART
DEFENDANT ATRIUM'S MOTION TO DISMISS
MATTER comes before the Court upon Defendant Atrium Medical
Corporation's Motion to Dismiss, filed on February 1,
2019 (Doc. 29) and Defendants Getinge USA,
Inc.'s and Maquet Cardiovascular, LLC's Motion to
Dismiss, filed on February 1, 2019 (Doc.
30). Having reviewed the parties' pleadings and
the applicable law, the Court finds that Defendants Getinge
USA's and Maquet's motion is well-taken in part and,
therefore, is GRANTED IN PART AND
DENIED IN PART. The Court further finds that
Defendant Atrium's motion is well taken in part and,
therefore, is GRANTED IN PART AND DENIED IN
brings this case following an injury allegedly caused by
Defendant Atrium's polypropylene mesh used in a hernia
repair. Plaintiff alleges the following claims:
Count I: Negligence
Count II: Strict Liability: Design Defect
Count III: Strict Liability: Manufacturing Defect
Count IV: Strict Liability: Failure to Warn
Count V: Breach of Express Warranty
Count VI: Breach of Implied Warranty
is a resident of Alamogordo, New Mexico. She underwent hernia
surgery on or about October 25, 1994. Doc. 25, ¶ 6.
Defendant Atrium's mesh product was used to repair her
hernia. She had a second surgery in 1995.
February 17, 2015, Plaintiff became ill with lower stomach
pain, and she had trouble breathing. Her daughter took her to
the emergency room. Her hands and fingers had turned blue,
and Dr. William Pollard found that the mesh covering her
hernia had embedded itself into a section of her bowels,
causing an obstruction and twisting her intestines. She had
emergency surgery on February 18, 2015, as Dr. Pollard feared
the obstruction could burst and kill her. Dr. Pollard had to
remove a section of her bowels that died, because it was not
receiving blood and oxygen.
recovery took six weeks, during which she had to hire a nurse
and was out of work. After eight months, once she healed, she
needed another surgery to repair the hernia on November 4,
2015. Dr. Pollard repaired the hernia with a metal mesh, and
she had to miss work for another four weeks.
Atrium Medical Corporation is a Delaware Corporation
headquartered in New Hampshire. Plaintiff alleges that
Defendant Getinge Group is a Swedish corporation. Defendant
Getinge USA is a Delaware Corporation headquartered in New
York. Defendant Maquet Cardiovascular LLC is a German
alleges that Getinge USA and Maquet acquired Atrium through a
merger and acquired Atrium's assets and assumed
Atrium's liabilities. She alleges Defendant Atrium
operates as a “business unit” of Getinge
subsidiary Maquet. Plaintiff also alleges that Atrium is an
alter ego and agent of Getinge USA and Maquet.
response, Defendants Getinge USA and Maquet submitted
affidavits asserting that Defendant Atrium is a separate,
active entity, and Getinge USA and Maquet are
“sibling” corporations who have a common parent
corporation with Atrium. They assert facts, which, if true,
would tend to show that Defendants Getinge USA and Maquet do
not control Atrium's day-to-day activities.
Personal Jurisdiction over Getinge USA and Maquet
Getinge USA and Maquet argue this Court lacks personal
jurisdiction over them. Federal courts sitting in diversity
have personal jurisdiction over nonresident defendants to the
extent permitted by the law of the forum. Benally v. Amon
Carter Museum of Western Art, 858 F.2d 618, 621 (10th
Cir. 1988) (citations omitted). The New Mexico long-arm
statute extends personal jurisdiction to the extent permitted
by due process. Tercero v. Roman Catholic Diocese of
Norwich, Connecticut, 48 P.3d 50, 54 (N.M. 2002).
Therefore, in this diversity case, the Court will generally
limit its analysis to binding Tenth Circuit and United States
Supreme Court precedent analyzing personal jurisdiction under
the due-process clause. Federated Rural Electric Ins.
Corp. v. Kootenai Electric Coop., 17 F.3d 1302, 1305
(10th Cir. 1994); Melea, Ltd. v. Jawer SA, 511 F.3d
1060, 1065 (10th Cir. 2007).
Fed. R. Civ. P. 12(b)(2) standard
bears the burden of establishing personal jurisdiction over
Getinge USA and Maquet. See Kuenzle v. HTM Sport-Und
Freizeitgeräte AG, 102 F.3d 453, 456 (10th Cir.
1996). Plaintiff need only make a prima facie
showing of jurisdiction to defeat a motion to dismiss.
See Shrader v. Biddinger, 633 F.3d 1235,
1239 (10th Cir. 2011). “The allegations in the
complaint must be taken as true to the extent they are
uncontroverted by the defendant's affidavits.”
Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th
Cir. 1995). If the facts in the complaint are controverted,
Plaintiff may make the required showing by coming forward
with facts, via affidavit or other written materials, that
would support jurisdiction. See OMI Holdings v. Royal
Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). All
factual disputes must be resolved in Plaintiff's favor.
Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th
Cir. 1995). The Court need only accept as true well-pled
facts, i.e. facts that are non-conclusory and
Personal Jurisdiction and Due Process.
comport with due process, Plaintiff must establish that
Defendants Getinge USA and Maquet have “such minimum
contacts with the forum state that he should reasonably
anticipate being haled into court there.”
Emp'rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618
F.3d 1153, 1159- 60 (10th Cir. 2010) (quotations omitted). If
Plaintiff does so, she must also establish that exercise of
personal jurisdiction over Defendants does not offend