In Talc case, Motion to Dismiss Denied Based on Business Registration; Case Not Remanded to State Court U.S. District Court E.D. Pennsylvania, January 16, 2019

PENNSYLVANIA -The plaintiffs filed suit in the Philadelphia Court of Common Pleas against Imerys and Johnson & Johnson, alleging that the plaintiff Carrie Youse’s use of cosmetic talcum powder caused her to develop mesothelioma. Imerys filed a notice of removal, including within the notice J&J’s consent. Soon thereafter, Imerys filed a Motion to Dismiss for lack of jurisdiction which was rendered moot by the plaintiffs filing an amended complaint. In the amended complaint, the plaintiffs added a claim against Walmart. The plaintiffs subsequently moved to remand, and all three of the defendants responded in opposition.

J&J answered the amended complaint, including within it affirmative defenses and cross claims against co-defendants. Walmart filed two answers, one responding to the plaintiffs’ amended complaint, including within it crossclaims against co-defendants, and one in response to J&J’s crossclaims. Imerys did not answer the amended complaint, but filed a Motion to Dismiss for lack of jurisdiction. The plaintiffs filed a response to Imery’s motion.

The plaintiffs contend that Walmart is a citizen of Pennsylvania, and that complete diversity does not exist. In opposition, Walmart argued that it is a Delaware corporation with its principal place of business in Arkansas, and therefore all parties are diverse. Walmart further argued that each of the five Walmart operating entities are neither incorporated or have a principal place of business in Pennsylvania. Additionally, the plaintiffs provided no evidence that Walmart is a Pennsylvania corporation. The court agreed with Walmart, and denied the Motion to Remand.

Imerys, in its Motion to Dismiss for lack of personal jurisdiction, argued that its only contact with the state is through its business registration, which it asserted is not a sufficient basis for personal jurisdiction under controlling precedent.  In Bane v. Netlink, Inc., Judge Sloviter held that business registration under 42 PA. STAT. AND CONS. STAT. ANN. Section 5301 was a sufficient basis for Pennsylvania courts exercising personal jurisdiction over a company. Imerys countered, arguing that “after Daimler, corporations cannot be subject to personal jurisdiction merely because they do business in the forum state.” 

The court held that “other judges in this district have found that under Section 5301, business registration constitutes consent to jurisdiction in Pennsylvania, even after Daimler. The court noted that “because the Supreme Court has not addressed the viability of consent post-Daimler, courts in this district have continued to apply the precedent established by the Third Circuit in Bane to hold that registration to do business in Pennsylvania constitutes consent to jurisdiction.” 

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