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Andrew v. Radiancy, Inc.

United States District Court, M.D. Florida, Orlando Division

June 22, 2017

LINDA ANDREW, Plaintiff,
v.
RADIANCY, INC.; PHOTOMEDEX, INC.; and DOLEV RAFAELI, Defendants.

          ORDER

          ROY B. DALTON JR. united States District Judge

         This cause is before the Court on the Defendants Dolev Rafaeli's and Photomedex, Inc.'s Motion to Dismiss the First Amended Complaint and Memorandum of Law in Support Thereof (Doc. 53), and Plaintiff's Opposition to Motion to Dismiss First Amended Complaint Against Defendants Rafaeli and Photomedex, Inc., and Incorporated Memorandum of Law (Doc. 55).

         I. Background

         On February 14, 2017, Plaintiff Linda Andrew named three Defendants- Radiancy, Inc. (“Radiancy”), Photomedex, Inc. (“Parent Company”), and Dolev Rafaeli (“Rafaeli”), in her Amended Complaint in this product liability action, which concerns a “no! no!” hair removal device, Model 8800 (“Device”).[1] (See Doc. 52.) After Radiancy's subsidiary-non-party Radiancy (Israel) Ltd. (“Radiancy (Israel)”)-manufactured the Device, Radiancy sold it to Plaintiff's spouse in Florida in December 2012. (See Doc. 52, ¶¶ 4, 6, 10; see also Doc. 39-7, ¶¶ 6-8.)

         Plaintiff is a breast cancer survivor who endured a “partial mastectomy of her right breast” and “axillary lymph node dissection” in 2000. (See Doc. 52, ¶16.) As a result, she suffers from secondary lymphedema (“Condition”); however, in December 2012-when her spouse gave her the Device as a Christmas gift-Plaintiff alleges that her “extremities were free from edema.”[2] (See id.) That changed in mid-January 2013, when she allegedly used the Device on her right arm. (See id.) Although Plaintiff immediately stopped using the Device when she “felt a tingling or pins and needles sensation, ” by the next day the Condition had returned in her right arm (“Recurrence”). (See id. ¶¶13-25.) Despite extensive medical treatment and self-care, the Recurrence has been largely unrelieved. (See id. (alleging that the Recurrence “remains a major problem in her life”).)

         Plaintiff alleges that the proximate cause of the Recurrence was the “unperceived high temperature generated by the Device”-at least 451˚F-which was “transferred along the hair shaft through the surface of the skin” (“Heat”). (See id. ¶ 28.) Plaintiff contends that Defendants “knew full well that the Device had the capacity to burn the user.” (See id. ¶38.) Further, the Defendants allegedly knew or should have known that the Heat produced by the Device was “more than sufficient to literally ‘fry' a lymphatically obstructed limb.” (See id. ¶¶ 39, 40.)

         Despite Defendants' alleged knowledge of the risks the Device posed for a large group of customers like Plaintiff, and due to marketing and profit concerns, the Defendants allegedly chose to: (1) provide inadequate and inappropriate warnings concerning only the appearance of a consumer's skin; (2) withhold warnings to the large number of consumers at risk of lymphedema that “no hair removal device which generates heat is suitable for vascularly impaired individuals;” and (3) market and advertise the Device as “safe and effective” and “Doctor recommended.” (See id. ¶¶ 36, 43; see also id. ¶¶ 51, 52, 55.) As such, Plaintiff alleges that the Device was defective, and all three Defendants are jointly and severally liable to her based on strict liability and negligence. (See id. ¶¶ 54, 55; see also id. ¶¶ 10-14, 17, 24-25, 28, 32-39, 43, 48-62.)

         Radiancy answered the Amended Complaint and admitted that: (1) it “markets, advertises, and distributes” the Device in the United States; (2) it is a subsidiary of Parent Company; and (3) Rafaeli is its CEO and President. (See Doc. 58, ¶ 2, 4, 6.) Parent Company and Rafaeli (“Moving Defendants”) did not answer; rather, they jointly moved to dismiss Plaintiff's negligence and strict liability claims against them for lack of personal jurisdiction and failure to state a claim. (Doc. 53.) Plaintiff responded (Doc. 55 (“Response”)), and the matter is now ripe for adjudication.

         II. Legal Standards

         When a plaintiff fails to establish “a prima facie case of personal jurisdiction” in her complaint, defendants may move to dismiss under Rule 12(b)(2). See Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). There are two requirements for a prima facie case: (1) first, a basis for jurisdiction must exist under Florida's Long-Arm Statute, Fla. Stat. § 48.193 (“FLAS”); and (2) second, the defendants' contacts with Florida must be sufficient to satisfy the Due Process Clause of the Fifth Amendment to the U.S. Constitution (“DP Clause”).[3] See Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004); Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500-02 (Fla. 1989); see also Bristol Myers Squibb Co. v. Superior Court of Cal., San Francisco, Cnty., No. 16-466, 2017 WL 2621322, at *11 (U.S. June 19, 2017) (noting that the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by federal courts that the Fourteenth Amendment imposes on state courts).

         If the complaint states a prima facie case, then a defendant must support its Rule 12(b)(2) motion with non-conclusory affidavits challenging the jurisdictional allegations and showing that personal jurisdiction is absent. See Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). If the affidavits are sufficient, then the burden shifts back to the plaintiff to establish her prima facie case with evidence sufficient to withstand a motion for directed verdict. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009) (explaining that the burden of production shifts to the plaintiff when the defendant makes an evidentiary showing “of the inapplicability of the long-arm statute”).

         “[T]he issue of whether personal jurisdiction is present is a question of law” that courts must resolve on a claim-by-claim basis. See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir. 2009). Courts must accept well-pled and unrefuted factual allegations as true. See Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013). But if there is a conflict in the record, courts must “construe all reasonable inferences in favor of the non-movant plaintiff” and deny the Rule 12(b)(2) motion if the “inferences are sufficient to defeat a motion for judgment as a matter of law.” See PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 809-10 (11th Cir. 2010). If the necessary inferences do not establish a prima facie case, then courts are “obligated” to grant the Rule 12(b)(2) motion and dismiss any unsupported claims without prejudice. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999).

         III. Discussion

         Under Florida's Long Arm Statute (“FLAS”), a party subjects itself to the specific jurisdiction of Florida courts “for any cause of action arising from” certain enumerated acts, if the acts are done by the party “personally or through an agent.” See Fla. Stat. § 48.193(1)(a). The enumerated acts include “[c]ommitting a tortious act” in Florida and causing injury to a plaintiff in Florida under certain circumstances. Id. §§ 48.193(1)(a)(2) & (6). Where a plaintiff asserts a claim that a defective product purchased in Florida caused her harm in Florida, the court may exercise specific personal jurisdiction over the manufacturer, wholesaler, and distributor who intentionally caused the product to enter Florida.[4] See Wetzel v. Fisherman's Wharf of Pompano Beach, Inc., 771 So.2d 1195, 1198-99 (Fla. 4th DCA 2000) (finding that personal jurisdiction existed based on defendant's “hands-on contact with the goods before their arrival in Florida”).[5]

         A. The Parent Company

         Parent Company is a Nevada corporation with its principal place of business in Pennsylvania. (See Doc. 52, ¶ 3; see also Doc. 8, ¶ 10; Doc. 44, pp. 32-33.) The Parent Company “does not have operations, facilities, employees or offices in the state of Florida” (Doc. 8, ¶ 14), but Plaintiff alleges that FLAS is met because the Parent Company caused her injury and committed tortious acts in Florida by marketing, advertising, and distributing the Device in Florida (Doc. 52, ¶¶ 6, 8). Such allegations satisfy Plaintiff's initial pleading burden; thus, the Moving Defendants were required to refute Plaintiff's allegations with non-conclusory affidavits or declarations.

         The Moving Defendants did not file affidavits responding to the jurisdictional allegations set forth in Plaintiff's Amended Complaint (see Doc. 53), but they previously filed an affidavit and declarations from Rafaeli in relation to the Notice of Removal (Doc. 1), a Motion to Dismiss the initial Complaint (Docs. 7, 11), and a Response in Opposition to Plaintiff's Motion to Amend (Doc. 39). (Doc. 2 (“Removal Affidavit”); Doc. 8 (“Rafaeli Affidavit”); Doc. 39-7 (“Rafaeli Declaration”).) The Court has considered the evidence specifically cited in the MTD.[6] (See Doc. 53, p. 17 (citing the Rafaeli Affidavit); id. at 25 (asserting that an uncited “affidavit of Defendant Rafaeli is complete and comprehensive”).)

         According to the Rafaeli Declaration: (1) the Device was distributed by Radiancy and was manufactured by a related company that is not a party to this action (see Doc. 39-7, ¶¶6-9);[7] and (2) Parent Company did not manufacture, distribute, or sell the Device, and it had no “involvement with the [D]evice's development, labeling, marketing, advertising, design, or assembly.” (See Doc. 39-7, ¶¶ 10, 33; see also Doc. 8.) Although ...


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