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Fisher v. Alfa Chemicals Italiana

United States Court of Appeals, Ninth Circuit
Dec 7, 2007
258 F. App'x 150 (9th Cir. 2007)

Summary

finding the stream of commerce analysis is inapplicable to general jurisdiction

Summary of this case from Brady v. Sw. Airlines Co.

Opinion

No. 05-17402.

Argued and Submitted November 5, 2007.

Filed December 7, 2007.

Will Kemp, Esq., Harrison Kemp Jones, Chtd., Las Vegas, NV, for Plaintiffs-Appellants.

Stephen L. Morris, Esq., Jennifer S. Parker, Morris Pickering Sanner Bank of America Plaza, Kevin E. Helm, Esq., Helm Associates, Carrie J. McCrea-Hanlon, Esq., Pyatt Silvestri Hanlon, Chtd., Las Vegas, NV, Charles E. Wheeler, Esq., Cozen O'Connor, San Diego, CA, for Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-05-01031-PMP.

Before: SCHROEDER, Chief Judge, HALL and BYBEE, Circuit Judges.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Wanda Fisher developed heart problems after taking fen-phen. She took fen-phen while she was living in Utah, and developed the problems in Nevada. Fisher filed this action in Nevada state court, naming as defendants several firms in the drug's chain of distribution, including the Italian manufacturer of the fenfluramine component, Alfa Chemicals Italiana ("Alfa"). After removal by defendant Professional Compounding Centers of America ("PCCA"), the district court denied Fisher's motion to remand and concluded it lacked personal jurisdiction over Alfa. Only the issues of removal and specific jurisdiction are raised on appeal.

Fisher argues that removal was improper because PCCA's Notice of Removal did not explain why the other named defendants had not joined it. But it was clear to Fisher and to the district court that none of the other defendants had been served, so there was no reason for PCCA to have provided such an explanation in this case. See Emrich v. Touche Ross Co., 846 F.2d 1190, 1193 n. 1 (9th Cir. 1988) (the general rule that all defendants must join a removal petition "applies, however, only to defendants properly joined and served in the action"). Therefore, failure to explain the absence of other defendants does not constitute a ground on which Fisher may now challenge the removal. Cf. Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1265-66 (9th Cir. 1999) (where service on non-joining defendants was attempted but potentially defective, removal petition's failure to "affirmatively explain" lack of unanimous joinder constituted a procedural defect compelling remand).

Further, specific personal jurisdiction fails because Alpha had no reason to know that its product was being sold for human consumption in the United States, much less specifically in Nevada. That the fenfluramine was unilaterally being transported to the United States and compounded with phentermine in various individual pharmacies in different states is insufficient to support a finding that Alpha purposefully availed itself of the privilege of conducting activities in Nevada and "should reasonably [have anticipated] being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). AFFIRMED.

Even though we affirm a grant of "summary judgment," the district court's decision was not on the merits; therefore, neither it nor our disposition here precludes refiling in a forum in which Alfa is subject to jurisdiction. See 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2713 (3d ed. 1998).


Summaries of

Fisher v. Alfa Chemicals Italiana

United States Court of Appeals, Ninth Circuit
Dec 7, 2007
258 F. App'x 150 (9th Cir. 2007)

finding the stream of commerce analysis is inapplicable to general jurisdiction

Summary of this case from Brady v. Sw. Airlines Co.

finding the stream of commerce analysis is inapplicable to general jurisdiction

Summary of this case from Brady v. Sw. Airlines Co.

finding no specific jurisdiction over Italian manufacturer of felfluramine in Nevada for lack of contacts, despite FDA filings

Summary of this case from Trokamed GmbH v. Vieira

In Fisher, the Court of Appeals rejected the plaintiff's challenge to removal based on failure to explain why other named defendants did not join the notice of removal.

Summary of this case from Gianelli v. Schoenfeld
Case details for

Fisher v. Alfa Chemicals Italiana

Case Details

Full title:Wanda FISHER; et al., Plaintiffs-Appellants, v. ALFA CHEMICALS ITALIANA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Dec 7, 2007

Citations

258 F. App'x 150 (9th Cir. 2007)

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