United States District Court, M.D. Georgia, Athens Division
STEPHEN R. COLLETT and FELICITY COLLETT, Plaintiffs,
OLYMPUS CORPORATION and ADVANCED STERILIZATION PRODUCTS, Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
pending before the Court is Olympus Corporation's motion
to dismiss and Plaintiffs' motion for leave to amend
their Complaint. As discussed, the motion to dismiss (ECF No.
32) is granted, and Plaintiffs' claims against Olympus
Corporation are dismissed for lack of personal jurisdiction.
Plaintiffs' motion for leave to amend (ECF No. 41) is
granted to the extent set forth in this Order.
Motion to Dismiss
Corporation is a Japanese corporation headquartered in Japan.
Olympus Corporation seeks dismissal of Plaintiffs' claims
against it based on lack of personal jurisdiction. As a
preliminary matter, Plaintiffs argue that the motion to
dismiss is moot because their Second Amended Complaint
superseded the First Amended Complaint. But, as discussed in
more detail infra § II, Plaintiffs did not
receive leave of the Court or consent of the Defendants
before filing their Second Amended Complaint, so it is not
the operative Complaint.
diversity case, the Court may exercise personal jurisdiction
over a non-resident defendant only if (1) jurisdiction is
appropriate under the long-arm statute of Georgia (the state
where the Court sits) and (2) the exercise of jurisdiction
does not violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Diamond
Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593
F.3d 1249, 1257-58 (11th Cir. 2010). “A plaintiff
seeking the exercise of personal jurisdiction over a
nonresident defendant bears the initial burden of alleging in
the complaint sufficient facts to make out a prima facie case
of jurisdiction.” Id. at 1257 (quoting
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274
(11th Cir. 2009)). “Where, as here, the defendant
challenges jurisdiction by submitting affidavit evidence in
support of its position, ‘the burden traditionally
shifts back to the plaintiff to produce evidence supporting
jurisdiction.'” Id. (quoting
Mazer, 556 F.3d at 1274). “Where the
plaintiff's complaint and supporting evidence conflict
with the defendant's affidavits, the court must construe
all reasonable inferences in favor of the plaintiff.”
Id. (quoting Meier ex rel. Meier v. Sun
Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir.
Georgia's long-arm statute, Georgia courts may exercise
personal jurisdiction over a nonresident defendant if the
defendant, “in person or through an agent”:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state,
except as to a cause of action for defamation of character
arising from the act; [or]
(3) Commits a tortious injury in this state caused by an act
or omission outside this state if the tort-feasor regularly
does or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from goods
used or consumed or services rendered in this state[.]
O.C.G.A. § 9-10-91.
their First Amended Complaint, Plaintiffs summarily allege
that Olympus Corporation “transacts business within
[Georgia], has committed a tortious act or omission within
this state, and/or has committed a tortious injury in this
state caused by an act or omission outside of this
state.” 1st Am. Compl. ¶ 7, ECF No. 11;
accord Proposed 2d Am. Compl. ¶ 10, ECF No. 40
(same). Plaintiffs further allege that Olympus Corporation
“regularly does and solicits business, and engages in
other persistent courses of conduct, and derives substantial
revenue from services rendered in the State of
Georgia.” 1st Am. Compl. ¶ 8. Plaintiffs'
claims are based in part on alleged defects in a colonoscope
that Plaintiffs allege was “designed, manufactured and
sold as new by Olympus [Corporation].” Id.
¶ 19; Proposed 2d Am. Compl. ¶ 22 (alleging that
the colonoscope was designed, manufactured, and sold by
“Olympus, ” which includes Olympus Corporation,
Olympus Medical Systems Corporation, and Olympus America
response, Olympus Corporation submitted an affidavit that
states, in relevant part:
* A separate and distinct entity called Olympus Medical
Systems Corporation designed and manufactured the colonoscope
at issue in this action.
* Olympus Corporation is a separate and distinct legal entity
from the other ...