United States District Court, N.D. Illinois, Eastern Division
AMERICA'S HEALTH AND RESOURCE CENTER, LTD.; AFFILIATED HEALTH GROUP, LTD., Plaintiffs,
PROMOLOGICS, INC.; JANSSEN PHARMACEUTICALS, INC., Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge United States District Court
Janssen moves to strike the class allegations asserted by
Plaintiffs America's Health & Resource Center, Ltd.
and Affiliated Health Group, Ltd., and to bifurcate
discovery. (Dkts. 75, 78.) Defendant Promologics has joined
in those Motions. (Dkts. 87, 89.) For the reasons stated
herein, the Court grants in part and denies in part the
Motion to Strike the class allegations and grants the Motion
Court has previously summarized the facts of this case in an
earlier ruling. See, Am.'s Health & Res. Ctr.,
Ltd. v. Promologics, Inc., No. 16 CV 9281, 2017 WL
5001284, at *1 (N.D. Ill. Nov. 2, 2017). All that is relevant
for now is that Plaintiffs allege Defendants sent them, and
each member of their proposed class, a fax in violation of
the Telephone Consumer Protection Act, 47 U.S.C. § 227.
(Am. Compl. ¶¶ 1-10, Dkt. 21.) Defendants contend
that this class action is incurably defective, however, and
so they move to strike those allegations. Beyond that,
Defendants take issue with what they see as a shortage of
proof to back up the viability of the named Plaintiffs'
individual claims. Defendants accordingly move to bifurcate
discovery so they and the Court can first ascertain whether
the named Plaintiffs have individual claims before
contending, if still necessary, with the proposed class
Motion to Strike Class Allegations
to Defendants, the Court should strike the class allegations
in part or in whole for three reasons: (1) Under the Supreme
Court's decision in Bristol-Myers Squibb Co. v.
Superior Court of California, 137 S.Ct. 1773, 1783-84
(2017), this Court lacks personal jurisdiction over the
Defendants as to the claims of the non-Illinois-resident
class members; (2) due to an imprecise class definition, the
named Plaintiffs' claims are not typical of the claims of
the other class members; and (3) individualized issues of
consent predominate over common questions of law or fact, so
the class fails to clear Federal Rule of Civil Procedure
23(b)(3), as required here. The Court finds only the first of
these arguments convincing.
Personal Jurisdiction under Bristol-Myers
jurisdiction may be “general” or
“specific.” General jurisdiction lies only where
the defendant has “continuous and systematic”
contacts with the forum state. See, Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
415-16 (1984). In all but the most exceptional cases, general
jurisdiction over a corporation is limited to its place of
incorporation and/or principal place of business.
Leibovitch v. Islamic Republic of Iran, 188
F.Supp.3d 734, 746 (N.D. Ill. 2016) (citing Daimler AG v.
Bauman, 134 S.Ct. 746, 761 n.19 (2014)),
aff'd, 852 F.3d 687 (7th Cir. 2017). In
contrast, “[s]pecific personal jurisdiction is
appropriate where (1) the defendant has purposefully directed
his activities at the forum state or purposefully availed
himself of the privilege of conducting business in that
state, and (2) the alleged injury arises out of the
defendant's forum-related activities.” Tamburo
v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010) (citing
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472
(1985)). In either case, the plaintiff must also demonstrate
that the exercise of jurisdiction comports with traditional
notions of fair play and substantial justice. Int'l
Shoe Co. v. Washington, 326 U.S. 310, 320 (1945).
contending in their Complaint that Defendant Janssen is
subject to this Court's general jurisdiction (Am. Compl.
¶ 18, Dkt. 21), Plaintiffs make no general jurisdiction
arguments in their present briefing as to either Defendant,
both of which are incorporated and maintain their principal
places of business outside of Illinois. See,
Daimler, 134 S.Ct. at 761 n.19. As such, the remaining
jurisdictional inquiry is specific. Here, that inquiry
depends on the Supreme Court's ruling in
Bristol-Myers Squibb. 137 S.Ct. at 1783-84. That
case began as a mass tort action in California state court
involving hundreds of individual plaintiffs, most of whom
were not California residents. Id. at 1777. On
review, the Supreme Court considered the compatibility of the
state court's exercise of jurisdiction with the
Fourteenth Amendment's due process clause and concluded
that the state court lacked specific jurisdiction over the
defendant as to the claims of the nonresident plaintiffs.
Id. at 1779, 1783-84. In so holding, the Court
clearly limited its ruling to state court jurisdiction, thus
“leav[ing] open the question whether the Fifth
Amendment imposes the same restrictions on the exercise of
personal jurisdiction by a federal court.” Id.
at 1784 (citation omitted). That limitation is no barrier to
the rule's application here, however, where this Court
sits in diversity jurisdiction and accordingly looks to
Illinois state law. See, LDGP, LLC v. Cynosure,
Inc., No. 15 CV 50148, 2018 WL 439122, at *2 (N.D. Ill.
Jan. 16, 2018) (applying Bristol-Myers Squibb
holding in case of diversity jurisdiction); McDonnell v.
Nature's Way Prods., LLC, No. 16 CV 5011, 2017 WL
4864910, at *4 n.7 (N.D. Ill. Oct. 26, 2017) (same).
that is not the only possible barrier to Bristol-Myers
Squibb's application to this case. What remains is
whether that case applies with equal force to class actions
as to mass torts and, if so, whether the Defendants'
personal-jurisdiction objection predicated on that case is
either timely or, if untimely, excusable. The precise
membership of the proposed class is still unclear, but the
allegations suggest that the proposed nationwide class
contains members who neither reside, nor were harmed in,
Illinois. It is this group of plaintiffs whose claims
Defendants seek to shear from the case, and if the Court
answers the questions presented above in the affirmative,
Defendants' efforts will prevail.
the first question: Bristol-Myers Squibb left open
whether its jurisdictional rule applies in the class action
context. See 137 S.Ct. at 1789 n.4 (Sotomayor, J.,
dissenting) (“The Court today does not confront the
question whether its opinion here would also apply to a class
action in which a plaintiff injured in the forum State seeks
to represent a nationwide class of plaintiffs, not all of
whom were injured there.”). District court rulings have
begun to fill that vacuum, though with contradictory results.
Compare Casso's Wellness Store & Gym, LLC v.
Spectrum Lab. Prods., Inc., No. 17 CV 2161, 2018 WL
1377608 (E.D. La. Mar. 19, 2018); In re Morning Song Bird
Food Litig., No. 12 CV 01592, 2018 WL 1382746, at *5
(S.D. Cal. Mar. 19, 2018); Sanchez v. Launch Tech.
Workforce Sols., LLC, 297 F.Supp.3d 1360, 1365-66
(N.D.Ga. 2018); In re Chinese-Manufactured Drywall Prod.
Liab. Litig., No. MDL 09-2047, 2017 WL 5971622, at *12
(E.D. La. Nov. 30, 2017) (cases finding Bristol-Myers
Squibb inapplicable to class actions), with Maclin
v. Reliable Reports of Tex., Inc., No. 17 CV 2612, 2018
WL 1468821, at *4 (N.D. Ohio Mar. 26, 2018); Wenokur v.
AXA Equitable Life Ins. Co., No. 17 CV 00165, 2017 WL
4357916, at *4 n.4 (D. Ariz. Oct. 2, 2017); In re Dental
Supplies Antitrust Litig., No. 16 CV 696, 2017 WL
4217115, at *9 (E.D.N.Y. Sept. 20, 2017) (finding the
opposite). This Court has also weighed in and agreed with
those courts finding Bristol-Myers Squibb applicable
to class actions. See, DeBernadis v. NBTY, Inc., No.
17 CV 6125, 2018 WL 461228, at *2 (N.D. Ill. Jan. 18, 2018).
That ruling comports with the position taken by the other
courts in this District which have answered this question.
See, McDonnell, 2017 WL 4864910, at *4; Greene
v. Mizuho Bank, Ltd., 289 F.Supp.3d 870, 874 (N.D. Ill.
decisions finding Bristol-Myers Squibb applicable to
class actions have generally observed that due process
requirements do not differ between class and non-class
actions. In either event, as the Supreme Court articulated,
due process requires “a connection between the forum
and the specific claims at issue.” Bristol-Myers
Squibb, 137 S.Ct. at 1781; see, Greene, 289
F.Supp.3d at 874 (stating same); Maclin, 2018 WL
1468821, at *4 (remarking that the respective due process
protections of the Fifth and Fourteenth Amendments engender
the same effects as far as personal jurisdiction are
concerned); In re Dental Supplies Antitrust Litig.,
2017 WL 4217115, at *9 (“The constitutional
requirements of due process do not wax and wane when the
complaint is individual or on behalf of a class.”).
This Court agrees with that observation and now endorses it
once again, reflecting this Court's belief that
Bristol-Myers Squibb applies in equal measure to
answering this first question in the affirmative does not yet
give Defendants a victory in their quest to cut down the
proposed class. There is also the question of timeliness.
Plaintiffs contend that even if this Court believes
Bristol-Myers Squibb applies with equal force to
class actions, Defendants' Motion still fails because, by
challenging this Court's personal jurisdiction,
Defendants' filing is nothing more than a 12(b)(2) motion
in disguise. And as such, it is susceptible to ...