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Jennifer L. Marshall, Plaintiff v. I-Flow

April 20, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Jennifer L. Marshall underwent shoulder surgery in upstate New York in 2006, following which a "pain pump" manufactured by Defendant I-Flow was inserted into her shoulder joint. She alleges that this caused significant cartilage damage, leading her to file this suit. Defendant, a Delaware corporation headquartered in California, now moves to dismiss the case for lack of personal jurisdiction; in the alternative, it asserts that venue in the District of Columbia is improper. Although the Court finds personal jurisdiction does exist, it will transfer the case to the more appropriate venue of the Northern District of New York.


According to the Complaint, which must be presumed true at this juncture, Plaintiff lives in Ithaca, New York. Compl., ¶ 18. Her shoulder surgery took place on July 6, 2006, in Syracuse. Id., ¶ 21. The surgery was followed by insertion of an I-Flow pain pump, which continuously infused her joint with pain medication. Id. After her shoulder worsened and more conservative treatment was unsuccessful, she underwent another surgery in Rochester in 2011. Id., ¶¶ 23-25. Other treatment after this second surgery also occurred in New York. Id., ¶¶ 26- 29. Her latest consultation has resulted in the recommendation of a "total shoulder replacement should her symptoms continue." Id., ¶ 29.

She brings this suit against I-Flow, asserting causes of action for negligence, negligence per se, negligent misrepresentation, fraud, strict product liability, failure to warn, and breach of implied warranty. Defendant has now asked the Court to dismiss the case or transfer it to the Northern District of New York.

II.Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(2), Plaintiff bears the burden of "establishing a factual basis for the [Court's] exercise of personal jurisdiction over the defendant." Crane v. New York Zoological Society, 894 F.2d 454, 456 (D.C. Cir. 1990) (citing Reuber v. United States, 750 F.2d 1039, 1052 (D.C. Cir. 1984), overruled on other grounds, Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994)). To meet this burden, Plaintiff "must allege specific facts connecting the defendant with the forum." Capital Bank Int'l Ltd. v. Citigroup, Inc., 276 F. Supp. 2d 72, 74 (D.D.C. 2003) (citing Second Amendment Foundation v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)).

In determining whether a basis for personal jurisdiction exists, "factual discrepancies appearing in the record must be resolved in favor of the plaintiff." Crane, 894 F.2d at 456 (citing Reuber, 750 F.2d at 1052). Unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

Similarly, when presented with a motion to dismiss for improper venue under Fed. R. Civ. P. 12(b)(3), the Court "accepts the plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's favor and resolves any factual conflicts in the plaintiff's favor." James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 11 (D.D.C. 2009). "To prevail on a motion to dismiss for improper venue, the defendant must present facts that will defeat the plaintiff's assertion of venue." Khalil v. L-3 Commc'ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C. 2009).


Defendant argues that the case should be dismissed both because the Court lacks personal jurisdiction over it and because venue here is improper. The Court will address each in turn.

A. Personal Jurisdiction

There are two types of personal jurisdiction that Plaintiff argues apply here: specific and general. See Opp. at 7-9. The District of Columbia's long-arm statute, D.C. Code § 13-423(a), articulates the bases for asserting specific jurisdiction over non-residents. See Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C. Cir. 2002). Plaintiff here relies on § 423(a)(1), which permits the court's exercise of personal jurisdiction over a person "transacting any business in the District of Columbia." That section, however, is limited by § 423(b), which states: "When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him." In other words, Plaintiff's claim must arise from Defendant's transacting of business here. See World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1168 (D.C. Cir. 2002) ("personal jurisdiction under this theory is limited to claims arising from the particular transaction of business in the District") (citations and internal quotation marks omitted). Plaintiff's allegations make manifest that such is not the case here.

Neither of the surgeries nor any subsequent treatment of Plaintiff took place in the District. All relevant acts occurred in New York. Plaintiff nonetheless alleges Defendant used prominent Washington hospitals and doctors to endorse its products, hosted dinners here to promote its products, and marketed and advertised its products here. Compl., ¶ 16. In addition, it profited from sales of pain pumps to D.C. hospitals, obtained medical consulting services of D.C. hospitals and doctors, and has established a partnership with George Washington University Hospital. Id., ¶ 19. Even if all of this is true, Plaintiff does not explain what connection these activities have to her claim here. The best Plaintiff can muster is the statement that "I-Flow misled both the medical community and the public at large, including Ms. Marshall and her orthopedic surgeon, by making false representations about the safety and proper use of its products." Opp. at 3 (citing Compl., ¶¶ 31-79, 91(k)). Yet this conclusory statement is far from sufficient to establish that ...

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