United States District Court, N.D. Mississippi, Oxford Division
ORDER DENYING DEFENDANT'S MOTION TO
MICHAEL P. MILLS, UNITED STATES DISTRICT
cause comes before the Court on two motions: (1) Defendant
Confluent Medical Technologies, Inc.'s (hereafter
“Confluent”) motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(2); and (2) Defendant
Cordis Corporation's (hereafter “Cordis”)
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). However, in the event that Confluent's 12(b)(2)
motion is denied by this Court, Confluent joins and adopts
Cordis's 12(b)(6) motion to dismiss all claims asserted
in Ouida Courson's (“Plaintiff”) complaint.
Plaintiff has requested leave to amend the complaint if this
Court finds any of the causes of action were insufficiently
plead. After review of the relevant documents filed by both
parties and the pertinent law, the Court finds that the
12(b)(2) and 12(b)(6) motions should be denied, and that
Plaintiff should be given leave to amend her complaint.
is the surviving spouse and proposed administrator of the
estate of Jack Wade Courson (“Decedent”). As an
alleged Mississippi resident, Plaintiff filed suit against
three nonresident corporate defendants; Cordis, Confluent,
and Johnson & Johnson.
about January 18, 2011, Plaintiff alleges that Decedent was
implanted with a Cordis TrapEase™ inferior vena cava
(“IVC”) filter for the treatment and prevention
of Decedent's deep vein thrombosis and pulmonary
embolism. The Court presumes that Plaintiff knows when
Decedent received the implant or died and it would be helpful
if the parties would use dates certain when such knowledge is
not in dispute. However, since the Plaintiff has used the
term “on or about” throughout the pleadings, the
Court will likewise wander with some uncertainty through the
legal conundrums alleged and exposed herein. The surgical
procedure to implant the IVC filter took place at Baptist
Memorial Hospital located in Oxford, Mississippi. Plaintiff
also alleges that Decedent suffered from a hemorrhage
sometime in 2012; and, on or about August 5, 2014, Decedent
ultimately passed away from respiratory failure and was
diagnosed with prostate cancer at the time.
September 22, 2017, Plaintiff brought a complaint seeking
damages alleging the IVC filter was defective, resulting in
hemorrhaging, respiratory issues, and weakened overall health
of the Decedent prior to his death. As a result, Plaintiff
alleges that all the Defendants participated in the design,
fabrication, and marketing of the IVC filter.
seeks to dismiss this action in its entirety for failure to
state a claim upon which relief can be granted. Cordis argues
that Plaintiff's complaint fails to allege any sufficient
causal allegations to present a plausible, non-speculative
claim connecting Decedent's death to a specific defect in
the design, manufacture, or warnings relating to the IVC
filter. Confluent joined in and adopted Cordis' motion to
dismiss for all purposes. Alternatively, Plaintiff requests
leave to amend her complaint under Rule 15(a)(2) should the
Court find it necessary to do so. Cordis asks the Court not
to exercise its discretionary power under Rule 15(a)(2) and
to deny Plaintiff's request to amend.
Rule 12(b)(2) Motion to Dismiss
motion to dismiss for lack of personal jurisdiction, the
plaintiff bears the burden of establishing a prima facie case
for the court's jurisdiction over a nonresident
defendant. See Ham v. La Cienega Music Co., 4 F.3d
413, 415 (5th Cir. 1993); Stuart v. Spademan, 772
F.2d 1185, 1192 (5th Cir. 1985). When the court rules on the
motion without an evidentiary hearing, the plaintiff may
establish personal jurisdiction by presenting a prima facie
case that personal jurisdiction is proper, id.;
proof by a preponderance of the evidence is not required.
International Truck and Engine Corp. v. Quintana,
259 F.Supp.2d 553, 556 (N.D.Tex.2003) (citing WNS, Inc.
v. Farrow, 884 F.2d 200, 203 (5th Cir.1989)). The court
may determine the jurisdictional issue by receiving
affidavits, interrogatories, depositions, oral testimony, or
any combination of the recognized methods of discovery.
Stuart, 772 F.2d at 1192. Uncontroverted allegations
in a plaintiff's complaint must be taken as true, and
conflicts between the facts must be resolved in favor of the
plaintiff. Bullion v. Gillespie, 895 F.2d 213, 217
(5th Cir.1990). After a plaintiff makes his prima facie case,
the burden then shifts to the defendant to present "a
compelling case that the presence of some other consideration
would render jurisdiction unreasonable." Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174,
85 L.Ed.2d. 528 (1985).
federal court has jurisdiction over a nonresident defendant
if the state long-arm statute confers personal jurisdiction
over that defendant, and if the exercise of jurisdiction is
consistent with due process under the United States
Constitution. Ruston Gas Turbines, Inc. v. Donaldson Co.,
Inc., 9 F.3d 415, 418 (5th Cir.1993). However,
"Mississippi's long arm-statute is not coextensive
with due process." See Stripling v. Jordan Prod.
Co., 234 F.3d 863, 869 n. 7 (5th Cir.2000).
Mississippi's long-arm statute states in pertinent part:
[a]ny nonresident person, firm, general or limited
partnership, or any foreign or other corporation not
qualified under the Constitution and laws of this state as to
doing business herein, who shall make a contract with a
resident of this state to be performed in whole or in part by
any party in this state, or who shall commit a tort in whole
or in part in this state against a resident or nonresident of
this state, or who shall do any business or perform any
character of work or service in this state, shall by such act
or acts be deemed to be doing business in Mississippi and
shall thereby be subjected to the jurisdiction of the courts
of this state.
Miss. Code Ann. § 13-3-57 (2002). This statute consists
of three prongs: (i) the contract prong; (ii) the tort prong;
and (iii) the doing-business prong. See Walker v. World
Ins. Co., 289 F.Supp.2d 786, 788 (S.D.Miss.2003). The
tort prong of the long-arm statute confers personal
jurisdiction over "[a]ny nonresident person ... who
shall commit a tort in whole or in part in this state against
a resident or nonresident of this state ...." Miss.Code
Ann. § 13-3-57. Under Mississippi law, a tort is not
complete until an injury is suffered. Thompson v.
Chrysler Motors Corp., 755 F.2d 1162, 1168 (5th
Cir.1985) (quoting Smith v. Temco, Inc., 252 So.2d
212, 216 (Miss.1971). If the injury occurs in Mississippi,
the tort is committed, at least in part, in the state, and
the requirements of the long-arm statute are satisfied.