208 F. Supp. 3d 648
E.D. Pa.2016Background
- Plaintiff Nancy Bors, as Administrator of the Estate of Maureen Milliken, sued Imerys Talc America, Inc. and Johnson & Johnson, alleging baby powder caused Milliken’s ovarian cancer and death.
- Milliken was a Pennsylvania resident who purchased and used J&J baby powder in Pennsylvania.
- Imerys is a Delaware corporation with principal place of business in California; it has no property, offices, bank accounts, sales, or talc distribution in Pennsylvania.
- Imerys registered to do business in Pennsylvania in 2007; Plaintiff bases personal jurisdiction solely on that registration.
- Imerys moved to dismiss for lack of personal jurisdiction (arguing Daimler/Walden undermine consent-by-registration), and alternatively for failure to state claims (UTPCPL standing, negligent misrepresentation, civil conspiracy, concerted action).
- The court denied the motion to dismiss: it held registration constituted consent to Pennsylvania jurisdiction and found Plaintiff’s pleadings sufficient under Rule 8 to state UTPCPL, negligent misrepresentation, conspiracy, and concerted-action claims (while noting discovery will require more specificity).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pennsylvania courts have personal jurisdiction over Imerys | Registration to do business in PA constitutes consent to jurisdiction under 42 Pa.C.S. §5301 and Third Circuit precedent (Bane) | Daimler and Walden limit general/specific jurisdiction; post-Daimler registration cannot supply constitutional jurisdiction | Court held Imerys’ 2007 registration constituted constructive consent to personal jurisdiction; Daimler did not eliminate consent-by-registration |
| Whether Plaintiff has standing under Pennsylvania UTPCPL | Milliken purchased and relied on J&J baby powder representations; suffered ascertainable loss and injury | Milliken did not purchase from Imerys or have dealings with Imerys; therefore not a purchaser under UTPCPL | Court held allegations suffice at pleading stage to plausibly show purchase, reliance, and injury for UTPCPL standing |
| Whether negligent misrepresentation claim is plausibly pleaded | Alleged representations that J&J baby powder was tested and safe; defendants knew or should have known risks; Milliken relied and was harmed | Claims are conclusory and should meet Rule 9(b) heightened fraud pleading | Court applied Rule 8 (not Rule 9(b)) to negligent misrepresentation and found allegations adequate to state a claim |
| Whether civil conspiracy and concerted-action claims are plausibly pleaded | Allegations identify period, objects, and acts (dates of false statements, withholding data, strategy to defend talc); Imerys supplied talc and participated with J&J | Allegations are collective and insufficiently individualized as to each defendant’s role | Court held the complaint pleads sufficient facts to state conspiracy and concerted-action claims at this stage; discovery may require greater specificity |
Key Cases Cited
- Daimler AG v. Bauman, 571 U.S. 117 (2014) (limits general jurisdiction to forums where corporation is essentially at home)
- Walden v. Fiore, 571 U.S. 277 (2014) (personal-jurisdiction analysis requires defendant’s own contacts with the forum)
- Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991) (holding registration to do business in Pennsylvania subjects foreign corporation to forum jurisdiction)
- Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) (discusses limits of general jurisdiction over foreign corporations)
- International Shoe Co. v. Washington, 326 U.S. 310 (1945) (establishes minimum contacts due process standard for personal jurisdiction)
- Acorda Therapeutics, Inc. v. Mylan Pharm. Inc., 817 F.3d 755 (Fed. Cir. 2016) (recognizes consent-by-registration as independent basis for general jurisdiction)
- Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016) (analyzes limits on jurisdiction-by-registration post-Daimler)