United States District Court, S.D. Mississippi, Northern Division
P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE
products-liability action is before the Court on Defendant
Smith & Nephew, PLC's (“PLC”) Motion to
Dismiss  for lack of personal jurisdiction. Plaintiff
John Randolph Taylor seeks jurisdictional discovery.
Pl.'s Mot. . For the following reasons, Taylor's
motion is denied, and PLC's motion is granted.
November 7, 2011, Taylor underwent hip-replacement surgery,
during which doctors implanted eight Smith & Nephew
components. Unfortunately, complications followed, and a
second surgery occurred on October 25, 2016, during which
doctors replaced three of those components: the R3 Three Hole
Hemispherical Stiktite Shell, the R3 XLPE Acetabular Liner,
and the Oxinium Modular Femoral Head and Titanium Modular
Head Sleeve. Pl.'s Third Am. Compl.  ¶ 9. Taylor
now says the Smith & Nephew products were defective,
causing permanent injuries. He therefore sued two Smith &
Nephew companies-PLC and Smith & Nephew Inc.
(“INC”)-asserting claims for strict products
liability and breach of warranty. In response, PLC moved to
dismiss for lack of personal jurisdiction. INC does not
dispute personal jurisdiction.
PLC's Motion to Dismiss for Lack of Personal Jurisdiction
a nonresident defendant challenges personal jurisdiction, the
plaintiff bears the burden of establishing the district
court's jurisdiction over the defendant.” Mink
v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999)
(citation omitted). The district court, sitting in diversity,
may assert jurisdiction if: (1) the forum state's
long-arm statute confers personal jurisdiction, and (2)
exercising jurisdiction does not exceed the boundaries of the
Fourteenth Amendment's Due Process Clause. Allred v.
Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997).
Where the district court rules on a motion to dismiss for
lack of personal jurisdiction without an evidentiary hearing,
the plaintiff need only make a prima facie case that
jurisdiction is proper. Quick Techs., Inc. v. Sage Grp.,
PLC, 313 F.3d 338, 343 (5th Cir. 2002).
making its determination, the district court may consider the
contents of the record before the court at the time of the
motion, including ‘affidavits . . . or any combination
of the recognized methods of discovery.'”
Id. at 344 (quoting Thompson v. Chrysler Motors
Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)). In
addition, the Court “must accept as true [the
plaintiff's] uncontroverted allegations, and resolve in
its favor all conflicts between the facts contained in the
parties' affidavits and other documentation.”
Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d
208, 215 (5th Cir. 2000).
parties dispute whether specific jurisdiction exists under
due-process analysis. The test for that issue includes three
(1) whether the defendant has minimum contacts with the forum
state, i.e., whether it purposely directed its activities
toward the forum state or purposefully availed itself of the
privileges of conducting activities there; (2) whether the
plaintiff's cause of action arises out of or results from
the defendant's forum- related contacts; and (3) whether
the exercise of personal jurisdiction is fair and reasonable.
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d
266, 271 (5th Cir. 2006). Taylor says he can establish these
elements because PLC placed the disputed components in the
stream of commerce, or alternatively, because PLC is
INC's alter ego. Pl.'s Mem.  at 10, 12, 18.
Stream of Commerce
the stream-of-commerce test, Taylor must show PLC's
contact with Mississippi “stems from a product, sold or
manufactured by [PLC], which has caused harm in
[Mississippi]” and that PLC “delivered the
product into the stream of commerce with the expectation that
it would be purchased or used by consumers in
[Mississippi].” Bearry v. Beech Aircraft
Corp., 818 F.2d 370, 374 (5th Cir. 1987); see also
Ainsworth v. Moffett Eng'g, Ltd., 716 F.3d 174, 177
(5th Cir. 2013) (holding this circuit continues to apply
Justice Brennan's stream-of-commerce theory post-J.
McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011)).
The salient question is whether PLC itself-or one of its
subsidiaries-delivered the products into the stream of
submits three sworn declarations to support its contention
that the Court lacks specific jurisdiction over it.
Significant to Taylor's stream-of-commerce argument,
Susan Swabey, PLC's Company Secretary, avers that
“PLC does not manufacture the product, nor did it have
any role in its design, labeling, marketing, or sale.”
Def.'s Mem.  at 8 (citing Swabey Decl. [30-1] at
¶¶ 9-11). Consistent with that, INC's
Vice-President of Global Marketing, John Clausen, stated in
his declaration that “Smith & Nephew, Inc.
developed, designed, and manufactured the components [at
issue] in the United States, with the exception [of one
component] manufactured in Tuttlingen, Germany, by Smith
& Nephew Orthopaedics Gmbh.” Clausen Decl. [30-2]
¶ 7 (emphasis added).
of course, disagrees. And to support his argument, he cites
(1) the Smith & Nephew 2017 Annual Report; (2) the 2017
Strategic Report that was part of the Annual Report; (3)
screenshots from the Smith & Nephew website; and (4)
PLC's social-media accounts. According to Taylor, these
exhibits contradict PLC's “self-serving
Affidavits” for nine reasons. Pl.'s Mem.  at
14. The Court has considered each document and argument to
determine whether they contradict PLC's declarations.
Alpine View Co., 205 F.3d at 215 (stating court
“must accept as true [Taylor's] uncontroverted
allegations, and resolve in [his] favor all conflicts between
the facts contained in the parties' affidavits and other
first three arguments can be grouped together. First, Taylor
says the Annual Report shows significant expenditures in
Research and Development (“R&D”). Pl.'s
Mem.  at 14 (citing Annual Report [35-1] at 14). Thus,
according to him, “PLC confirms that it
‘pays for the development of products like the Device
Components involved in [Taylor's] surgery.'”
Id. (quoting Pl.'s Third Am. Compl. [21-2]
¶ 6 (emphasis added)). Second, Taylor says the Annual
Report and website confirm PLC “make[s] or ‘has
developed a range of primary hip systems,' including
‘the R3 Acetabular System.'” Pl.'s Mem.
 at 11 (quoting Annual Report [35-1] at 19); see
Id. at 15 (citing Website [35-2], [35-3], [35-4]). And
third, Taylor asserts that according to ...