215 F. Supp. 3d 1329
N.D. Ga.2016Background
- Merial (Georgia plaintiff) sued Perrigo and related entities (defendants) for breaching a prior settlement (the Sergeant’s Agreement) and related duties by selling products allegedly infringing U.S. Patent No. 6,096,329 (the ’329 Patent); the cases were consolidated.
- Defendants previously moved to transfer or stay under 28 U.S.C. § 1404(a) (first-filed rule) rather than moving under Rule 12(b)(3); later they moved to dismiss Case 13 for lack of personal jurisdiction.
- Plaintiffs alleged defendants sold a generic Frontline Plus product in early 2011 (including in Georgia), negotiated/entered agreements involving Georgia counsel, ran national advertising, sponsored a Georgia blog, and registered products with the Georgia Dept. of Agriculture.
- Defendants produced affidavits contesting Georgia contacts and showed key payments and some negotiation/performance occurred out of state; they argued no continuous/systematic Georgia contacts and no Georgia-related acts giving rise to the asserted contract claims.
- The Court considered (1) whether defendants waived personal-jurisdiction defenses by earlier motions or litigation conduct, (2) whether Georgia’s long-arm statute § 9-10-91(1) was satisfied, and (3) whether exercising jurisdiction would meet Due Process; plaintiffs also requested jurisdictional discovery but never formally moved for it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of personal jurisdiction defense | Perrigo waived by earlier Rule 12 motion and litigation conduct (not raising jurisdictional objection) | Earlier filing sought transfer under §1404(a) (not improper venue under Rule 12(b)(3)); thus no waiver of 12(b)(2) defense | No waiver: transfer motion did not assert improper-venue defense under Rule 12(b)(3), so personal-jurisdiction defense preserved |
| Long‑arm statute (O.C.G.A. § 9‑10‑91(1)) — "transacts any business" | Plaintiffs point to 2011 Georgia sales, negotiated/executed agreements involving Georgia counsel, ad/blog sponsorship, and product registration | Defendants: only the 2011 sales occurred in Georgia; negotiations, choice-of-law, national ads, blog sponsorship, and registration do not show Georgia transactions or in-state performance | Only the early-2011 Georgia sales constituted transacting business under § 9‑10‑91(1); other alleged contacts insufficient |
| Specific personal jurisdiction (Due Process/minimum contacts) | Nationwide sales, advertising, and contacts with Georgia residents show purposeful availment and relationship to claims | Defendants: the Georgia sales predate and prompted the Sergeant’s Agreement, so they do not give rise to Merial’s contract claims; other contacts are not connected to the asserted claims | No specific jurisdiction: the only Georgia transaction that existed (2011 sales) did not give rise to the contract claims, so Due Process is not satisfied |
| Jurisdictional discovery request | Plaintiffs asked for discovery to confirm Georgia business contacts | Defendants opposed; plaintiffs never formally moved for discovery or pursued it after the motion practice | Denied: plaintiffs buried a discovery request in their response and failed to diligently seek discovery; dismissal without discovery affirmed |
Key Cases Cited
- Palmer v. Braun, 376 F.3d 1254 (11th Cir.) (personal-jurisdiction defense may be waived by omission in initial Rule 12 motion)
- Diamond Crystal Brands, Inc. v. Food Movers Int’l Inc., 593 F.3d 1249 (11th Cir.) (Georgia § 9‑10‑91(1) "transacts any business" is a distinct inquiry from federal Due Process analysis)
- Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915 (2011) (distinguishing specific and general jurisdiction principles)
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) (minimum contacts / fair play and substantial justice standard)
- Walden v. Fiore, 134 S. Ct. 1115 (2014) (minimum-contacts analysis looks to defendant’s contacts with the forum itself, not with forum residents)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (contract with out-of-state party alone does not automatically establish jurisdiction)
- United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th Cir.) (standards for jurisdictional discovery and plaintiff’s burden when defendant submits affidavits)