Fisher v. Teva PFC SRL, (3rd Cir. 2006)
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NOT PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS
F O R THE THIRD CIRCUIT
N o . 05-4238
W A N D A FISHER;
S C O T T FISHER,
Appellants
v. T E V A PFC SRL, AN ISRAEL CORPORATION,
A N ITALIAN CORPORATION, formerly known as
IN D U S T R IA CHIMICA FARMACEUTICA ITALIANA, SRS,
f o rm erly known as ALFA CHEMICALS ITALIANA
O n Appeal from the United States District Court
f o r the District of New Jersey
(D .C . Civil No. 04-cv-02780)
D is tr ic t Judge: Honorable Jose L. Linares
A rg u e d : September 28, 2006
B e f o re : RENDELL, ROTH and GIBSON*, Circuit Judges
(F ile d : December 22, 2006)
W illia m S. Kemp [ARGUED] H a rris o n , Kemp & Jones 3 8 0 0 Howard Hughes Parkway, 17th Floor L a s Vegas, NV 89109 C o u n se l for Appellants Wanda Fisher; Scott Fisher D o n a ld W. Kiel K irk p a tric k & Lockhart Nicholson Graham O n e Newark Center, 10th Floor N e w a rk , NJ 07102 S te v e n L. Morris [ARGUED] M o rris , Pickering & Peterson 3 0 0 South Fourth Street, Suite 900 L a s Vegas, NV 89101 C o u n s e l for Appellee Teva Pfc Srl, an Israel Corporation, An Italian Corporation, Formerly Known as Industria Chimica Farmaceutica Italiana, Srs, Formerly Known as Alfa Chemicals Italiana
O P IN I O N OF THE COURT R E N D E L L , Circuit Judge.
W a n d a and Scott Fisher appeal the District Court's order granting the motion of D e f en d a n t, Teva Pharmaceutical Fine Chemicals, S.R.L. ("Teva") for summary judgment b a se d on the court's lack of personal jurisdiction over Teva. On June 15, 2004, the F ishe rs filed a products liability lawsuit against Teva in the United States District Court f o r the District of New Jersey.1 Personal jurisdiction was premised on specific and g en era l jurisdiction and the defendant's contacts with New Jersey. The District Court g ra n te d Teva's motion for summary judgment for lack of personal jurisdiction, finding th e plaintiffs failed to show that the defendant had sufficient contacts with New Jersey a n d finding that the exercise of jurisdiction would be unreasonable. We will affirm the D istrict Court's order.
I.
In 1997, in order to control Wanda Fisher's weight problem, a Utah physician p re sc rib e d Ms. Fisher a drug containing Fenfluramine and Phentermine, commonly re f erre d to as fen-phen. She subsequently moved to Nevada and consumed the fen-phen th e re . Industria Chimica Farmaceutica Italiana, S.p.A. ("IFCI") produced the fe n flu ram in e contained in the drug Ms. Fisher ingested. Teva owns IFCI.2 T h e plaintiffs argue that the District Court for the District of New Jersey has 1 Prior to the New Jersey lawsuit, the Fishers commenced a lawsuit in the United States D is tric t Court for the District of Nevada. The Nevada district court also dismissed the la w s u it for lack of personal jurisdiction. An appeal is pending before the Ninth Circuit.
Fisher v. Prof. Compounding Ctrs. of Am., Inc., No. 05-17402.
2 ALFA Chemicals Italiano ("ALFA") owned ICFI. In December 1997, ICFI and A L F A merged with Pharmaceutical Fine Chemicals Italiana, S.r.l. ("PFC Italiana"). In M a y 1998 Allied Signal, Inc. acquired PFC Italiana. Honeywell International Inc. p u rch ase d PFC Italiana and the company became Honeywell PFC. In 2002, a subsidiary o f Teva Pharmaceutical Industries, Ltd. called Prosintex ICI purchased Honeywell PFC a n d the company became Teva Pharmaceutical Fine Chemicals S.r.l. The parties do not d isp u te the corporate arrangements which led Teva to be named as defendant. g e n e ra l personal jurisdiction over the defendant based on the following contacts by Teva w ith New Jersey: Teva requested and received approval from the Federal Drug A d m in istra tio n ("FDA") for 22 pharmaceutical products; it hired and communicated with a New Jersey- based company, Vinchem, as their exclusive New Jersey distributor; it sh ip p e d pharmaceutical products to New Jersey customers; and its employees traveled to N e w Jersey. The plaintiffs also contend that the Teva briefly retained an individual as a N e w Jersey employee and that, after Honeywell International purchased Teva, Honeywell o p e ra te d it from New Jersey.
II.
W e review a district court's grant of summary judgment for lack of personal ju ris d ic tio n de novo. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002).
While the plaintiff bears the burden to establish personal jurisdiction, we "must accept all o f the plaintiff's allegations as true and construe disputed facts" in the plaintiff's favor.
Id. We review a district court's factual findings for clear error. Pennzoil Prods. Co. v. C o le lli & Assoc., 149 F.3d 197, 200 (3d Cir. 1998).
Where, as here, a federal court has diversity jurisdiction pursuant to 28U.S.C.
§ 1332, a "federal district court may assert personal jurisdiction over a non-resident of the s ta te in which the court sits to the extent authorized" by that state's law. Provident Nat'l B a n k v. Cal. Fed. Sav. & Loan Assoc., 819 F.2d 434, 436 (3d Cir. 1987). The New Jersey L o n g -A rm Statute grants jurisdiction over non-residents to the full extent of the Due P ro c e s s Clause of the United States Constitution. Miller Yacht Sales, Inc. v. Smith, 3 8
Personal jurisdiction can be specific or general in nature. See Remick v. Manfredy, 2 3
I I I.
T h e District Court held that it lacked general jurisdiction over the defendant.3 It fo u n d that the distribution agreement with Vinchem, the visits by the defendant's e m p l o ye e s to New Jersey, and the past sales of the defendant's products did not establish c o n tin u o u s and systematic contacts with New Jersey. We agree.
T h e defendant did not maintain an office, employees, bank account, warehouse, or te le p h o n e listing in New Jersey. See, e.g., Pieczenik v. Dyax Corp., 265 F.3d 1329, 1 3 3 5 -3 6 (Fed. Cir. 2001) (finding the court lacked jurisdiction where the defendant did n o t maintain an office, bank account, telephone listing, or warehouse in the forum); B P Chem. Ltd.,
FDA approvals to market to the United States do not constitute "continuous and s ys te m a tic " contacts with New Jersey. The FDA approvals allowed Teva to do business w ith and import their drugs to all fifty states, not New Jersey alone. Teva did not market the drugs to New Jersey. While the plaintiffs claim Teva made tens of millions of dollars in drug sales to New Jersey customers, no proof of this was offered and the plaintiffs did n o t indicate the number of sales made directly to New Jersey customers as opposed to 3 The District Court also found it lacked specific personal jurisdiction. However, the p la in tif f s did not raise the specific jurisdiction issue on appeal. Therefore, the plaintiffs h a v e waived the specific jurisdiction issue and we will review only the finding that the D is tric t Court lacked general personal jurisdiction. See Laborers' Int'l Union v. Foster W h e e le r Corp., 26 F.3d 375, 398 (3d Cir. 1994). th o s e made to the independent distributor located in New Jersey.
T ev a's independent distributor, Vinchem, made most of the sales of Teva's p h a rm a c eu tic a l products in New Jersey. While a foreign company is not insulated from th e acts of its independent distributor for the purposes of specific jurisdiction, general ju ris d ic tio n requires greater contacts with the state than specific jurisdiction. Kuenzle v. H T M Sport-Und Freizeitgerate AG, 102 F.3d 453, 458 (10th Cir. 1996); see also C a m b r id g e Literary Prop., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H., 295 F.3d 59, 63 n .3 (1st Cir. 2002) (noting sales by an independent distributor normally do not constitute c o n ta c ts of the manufacturer). In addition, the distribution agreement with Vinchem e x p lic itly provided that Vinchem could not legally bind or represent Teva and no e v id e n c e suggested that the defendant controlled Vinchem. See BP Chem. Ltd., 229 F.3d a t 261 (finding that contracting with an entity in the forum is not sufficient to establish m inim u m contacts).
T e v a 's employees' visits to the United States occurred, at most, a few times a year a n d the plaintiffs never established how many trips were made to New Jersey. See H e lico p ter o s Nacionales de Colombia, 466 U.S. at 417-18 (finding scattered employee v is its to the forum for training insufficient to establish general jurisdiction). While Teva c o rre sp o n d e d with New Jersey clients and distributors, we previously have found that c o rr e s p o n d e n c e alone will not establish general jurisdiction. See BP Chem. Ltd., 229 F.3d a t 262.
T h e fact that Honeywell International, a New Jersey company, owned the d ef en d an t for a time does not help plaintiffs. The activities of a parent company are im p u te d to the subsidiary only if the subsidiary is the parent's agent or alter ego so that th e "independence of the separate corporate entities was disregarded." Lucas v. Gulf & W e ste rn Indus., Inc., 666 F.2d 800, 806 (3d Cir. 1981); accord Seltzer v. I.C. Optics, Ltd., 3 3 9 F. Supp. 2d 601, 609 (D.N.J. 2004). Here, the evidence presented merely suggests th e Italian plants reported to Honeywell and that Honeywell forecasted the distribution re q u ire m e n ts for the Italian defendant. This evidence is insufficient to find that H o n e yw e ll and the Teva lack independence. See BP Chem. Ltd., 229 F.3d at 262-63 (find ing the court did not have general jurisdiction over subsidiary where subsidiary s u b m itte d bid packages to and leased software from a parent corporation located in the fo rum ).
F in a l ly, the plaintiffs contend that the Teva briefly retained Kathleen Gianetti as a N e w Jersey employee and that this employment relationship is additional proof of m inim u m contacts with New Jersey. However, the facts found by the District Court re v e a l that Ms. Gianetti was not an employee of Teva. Though Ms. Gianetti claimed to b e a New Jersey employee of the defendant, her employment contract conclusively s h o w e d otherwise. We therefore agree with the District Court that Teva never employed a New Jersey employee.
W e also agree with the District Court that even if sufficient contacts existed, e x e rc is in g personal jurisdiction over the defendant would be unreasonable. To determine w h e th e r the exercise of jurisdiction is reasonable and comports with "traditional notions o f fair play and substantial justice," courts consider the following factors: the burden on th e defendant, the interest of the forum state, the plaintiff's interest in obtaining relief, a n d the judicial system's interest in obtaining efficient results. Asahi Metal Ind. Co. v. S u p e rio r Court of Cal., Solano Co., 480 U.S. 102, 114 (1987).
Here, the burden placed on the defendant would be great; New Jersey has little in ter e st in the lawsuit; and the plaintiffs do not have a great interest in obtaining relief in N e w Jersey, having originated this suit in Nevada and received the pill in Utah.
Accordingly, exercising jurisdiction over Teva would be unreasonable and contrary to " tra d itio n a l notions of fair play and substantial justice." A c c o rd in g ly, we will AFFIRM the District Court's order dismissing the case based o n its finding that it lacked general personal jurisdiction over Teva. In addition, e x e rc is in g jurisdiction would not comport with "traditional notions of fair play and s u b s ta n tia l justice."
* H o n o ra b le John R. Gibson, Judge of the United States Court of Appeals for the E ig h th Circuit, sitting by designation.
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This document cites
- U.S. Court of Appeals for the Third Circuit - Pennzoil Products Company, Appellant, v. Colelli & Associates, Inc.; Pyramid Treating Inc; T.O.P. Production & Oilfield Services Inc.; Colelli Oil Well Services Inc.; Chemical Solvents, Inc. Pyramid Treating Inc.; T.O.P. Production & Oilfield Services, Inc.; Chemical Solvents, Inc., Appellants in 97-3344. Pennzoil Products Company, Appellant in 97-3335., 149 F.3d 197 (3rd Cir. 1998)
- U.S. Supreme Court - Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102 (1987)
- U.S. Supreme Court - Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408 (1984)
- U.S. Supreme Court - International Shoe Co. v. Washington, 326 U.S. 310 (1945)
- U.S. Court of Appeals for the Tenth Circuit - Beverly Kuenzle and Wayne Kuenzle, Plaintiffs-Appellees, v. Htm Sport-Und Freizeitgerate Ag, Defendant-Appellant., 102 F.3d 453 (10th Cir. 1996)
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