MEMORANDUM DECISION AND ORDER

DEE BENSON, District Judge.

Before the Court is (1) Defendant Wright Medical Technology, Inc.'s ("WMT") Partial Motion to Dismiss Plaintiff's Complaint and Motion to Strike (Dkt. 6), and (2) Defendant Wright Medical Group, Inc.'s ("WMG") Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction (Dkt. 8). The Motions have been fully briefed by the parties, and the Court has considered the facts and arguments set forth in those filings. Pursuant to civil rule 7-1(f) of the Unites States District Court for the District of Utah Rules of Practice, the Court elects to determine the motions on the basis of the written memoranda and finds that oral argument would not be helpful or necessary. DUCivR 7-1(f).

The facts and legal issues presented in the case now before the Court are strikingly similar to those in Jorgensen v. Wright Medical Group, Inc. and Wright Medical Technology, Inc., Case No. 2:18-CV-366, before Judge Ted Stewart, District Judge for the District of Utah. The attorneys for the Plaintiff and the Defendants in both actions are the same and with the exception of the Plaintiffs' respective names and dates of surgery1 the Complaints filed in the two actions are identical. (Compare Dkt. 2 with 2:18-CV-366 TS, Dkt. 2.)

The two motions now pending before the Court are identical to, and were filed on the same date, as two motions filed in the Jorgensen case before Judge Stewart. Not surprisingly, the Plaintiff's responses, Defendants' replies, and the parties' exhibits to both motions are also identical and were filed on the same dates in both cases.

On November 5, 2018, Judge Stewart issued a Memorandum Decision and Order in Jorgensen, granting in part and denying in part Defendant WMT's Partial Motion to Dismiss Plaintiff's Complaint and Motion to Strike. Jorgensen v. Wright Medical Group, Inc., Slip Copy, 2018 WL 5792325 (D. Utah Nov. 5, 2018). The court granted the motion with respect to dismissing Counts I, V, VI, VIII, IX, and X, but denied WMT's motion to strike Plaintiff's request for punitive damages and prejudgment interest. Id. at *4-*5.

Additionally, on November 29, 2018, Judge Stewart issued a Memorandum Decision and Order granting Defendant WMG's motion to dismiss for lack of personal jurisdiction and dismissing all of Plaintiff's claims against WMG. Jorgensen v. Wright Medical Group, Inc., Slip Copy, 2018 WL 6250606 (D. Utah Nov. 11, 2018).

The Court finds that the rulings issued by Judge Stewart in the Jorgensen action are directly applicable to the arguments and issues now before the Court, and the Court hereby adopts and incorporates the reasoning set forth therein and reaches the same results.2

In accord with the analysis and reasoning set forth in Jorgensen v. Wright Medical Group, Inc., Slip Copy, 2018 WL 5792325 (D. Utah Nov. 5, 2018), it is hereby ORDERED that Defendant WMT's Partial Motion to Dismiss Plaintiff's Complaint (Dkt. 6) is GRANTED and Counts I, V, IV, VIII, IX and X are dismissed; WMT's Motion to Strike (Dkt. 6) is DENIED; and WMG's Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction (Dkt. 8) is GRANTED.

Exhibit A

Attorneys and Law Firms

Nancy A. Mismash, Robert J. Debry & Associates, Salt Lake City, UT, for Plaintiff.

Danielle N. Bagwell, Duane Morris LLP, Philadelphia, PA, Elisabeth M. McOmber, Snell & Wilmer LLP, Salt Lake City, UT, Sean K. Burke, Duane Morris LLP, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND MOTION TO STRIKE

Ted Stewart, United States District Judge

*1 This matter is before the Court on Wright Medical Technology, Inc.'s Partial Motion to Dismiss Plaintiff's Complaint and Motion to Strike.1 Defendant seeks dismissal of Plaintiff's first, fifth, sixth, eighth, ninth, and tenth causes of action and seeks to strike Plaintiff's request for punitive damages and prejudgment interest. For the reasons discussed below, the Court will grant the Motion in part and deny it in part.

I. BACKGROUND

Plaintiff brings this action alleging that she sustained injuries stemming from allegedly defective hip implant devices manufactured and sold by Wright Medical Technology, Inc. (the "Wright Hip System"). Plaintiff alleges she underwent a right total hip replacement in June 2009 and later underwent a left total hip replacement in 2010. In both surgeries, Plaintiff used a Wright Hip System.

Plaintiff alleges that because of the design, manufacture, and composition of the device, Plaintiff's Wright Hip System detached, disconnected, created metallic debris, and/or loosened from Plaintiff's acetabulum. This allegedly caused debilitating pain, decreased mobility, and emotional distress. Plaintiff then underwent revision surgery to remove the Wright Hip implants.

Plaintiff's Complaint asserts ten causes of action. Defendant seeks partial dismissal of Plaintiff's Complaint.

II. STANDARD OF REVIEW

In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b) (6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as the nonmoving party.2 Plaintiff must provide "enough facts to state a claim to relief that is plausible on its face,"3 which requires "more than an unadorned, the-defendant-unlawfully harmed-me accusation."4 "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'"5

"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted."6 As the Court in Iqbal stated,

*2 In considering a motion to dismiss, a district court not only considers the complaint, "but also the attached exhibits,"8 and "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice."9 The Court "may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity."10

Rule 12(f) of the Federal Rules of Civil Procedure states that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike under Rule 12(f) are viewed with disfavor by the federal courts and are infrequently granted.11 Such motions "should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action."12

III. DISCUSSION

Defendant seeks dismissal of Plaintiff's first, fifth, sixth, eighth, ninth, and tenth causes of action and seeks to strike Plaintiff's request for punitive damages and prejudgment interest. The Court will discuss each issue in turn.

A. STRICT LIABILITY — MANUFACTURING DEFECT

Utah law recognizes three types of product defects: "manufacturing flaws, design defects, and inadequate warnings regarding use."13 To succeed on a manufacturing defect claim, "a plaintiff must prove that (1) the manufacturing defect made the product unreasonably dangerous, (2) the defect was present at the time of the product's sale, and (3) the defect caused the plaintiff's injury."14 "[A] manufacturing defect claim, by its nature, involves a deviation from the product's design specifications, to the injury or potential injury of a user. The gravamen of the tort is not defective design but defective execution of the design."15

Plaintiff alleges "that the Wright Hip System implanted in Plaintiff was defectively manufactured because it differed from the manufacturer's design and specifications, or from typical units of the same product line."16 This is a conclusory statement that fails to satisfy the pleading standard. Plaintiff does not identify what component of the system was defectively manufactured, how it differed from the design and specifications, or how that deviation caused her injuries. Without such allegations, Plaintiff's claim must be dismissed. In response to the Motion to Dismiss, Plaintiff argues that her claim is sufficient because a properly functioning artificial hip would not have caused the damages she alleges she suffered. Even accepting this, it fails to demonstrate that the product was allegedly defective as a result of a manufacturing flaw. Therefore, the Court will dismiss this cause of action.

B. NEGLIGENT FAILURE TO RECALL/ RETROFIT

*3 Plaintiff's fifth cause of action alleges that Defendants were negligent in failing to recall, retrofit, or warn patients of physicians about the alleged dangers of the Wright Hip System. Defendant argues that there is no basis under Utah law to impose a post-sale duty to retrofit or recall. Plaintiff failed to respond to Defendant's Motion as to this claim and it will be dismissed.

C. BREACH OF EXPRESS WARRANTY

To prove that there was an express warranty, Plaintiff must show that Defendants made affirmations or promises, including product descriptions, that became a basis of the bargain.17 Here, Plaintiff alleges generally that Defendants made certain representations to physicians and patients about the safety and efficacy of the Wright Hip System.18 What is missing from Plaintiff's Complaint, however, is any allegation that these representations became a basis of the bargain.

In response to the Motion to Dismiss, Plaintiff states that "[w]e know that Wright's representations about safety and performance became the basis of the bargain because Mrs. Jorgensen selected and received a Wright prosthetic hip system during her total hip replacement surgeries on June 1, 2009, and January 25, 2010."19 However, there are no allegations in the Complaint that would support this statement. While Plaintiff argues that she had other options when selecting a hip device, there is no allegation that Plaintiff was aware of any of Defendant's alleged representations or that she or her physician relied on them in determining which hip implant to choose. Therefore, Plaintiff's claim fails.

D. FRAUDULENT MISREPRESENTATION AND FRAUDULENT CONCEALMENT

The elements of a claim for fraudulent misrepresentation are: (1) a representation; (2) concerning a presently existing material fact; (3) which was false; (4) which the representor either (a) knew to be false, or (b) made recklessly, knowing that he had insufficient knowledge upon which to base such representation; (5) for the purpose of inducing the other party to act upon it; (6) that the other party, acting reasonably and in ignorance of its falsity; (7) did in fact rely upon it; (8) and was thereby induced to act; (9) to his injury and damage.20

The elements of fraudulent concealment are: (1) the nondisclosed information is material, (2) the nondisclosed information is known to the party failing to disclose, and (3) there is a legal duty to communicate.21

Plaintiff's fraud claims are subject to the requirements of Federal Rule of Civil Procedure 9(b). Rule 9(b) requires that when "alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." "At a minimum, Rule 9(b) requires that a plaintiff set forth the who, what, when, where and how of the alleged fraud and must set forth the time, place, and contents of the false representation, the identity of the party making the false statements and the consequences thereof."22

*4 Plaintiff alleges that Defendants fraudulently misrepresented to the medical community and the general public that the Wright Hip System was safe and effective. Plaintiff also alleges that Defendants fraudulently concealed and suppressed adverse information relating to the safety and performance of the Wright Hip System. These allegations are insufficient under Rule 9(b). Plaintiff does not allege who made the alleged misrepresentations or omissions and when or where they occurred. Plaintiff fails to adequately set forth the time, place, and contents of the representations and omissions. Moreover, Plaintiff fails to adequately allege that the alleged misrepresentations were made to her or her physician and that they were relied upon by them. Additionally, as to her fraudulent concealment claim, Plaintiff has failed to allege the existence of a duty. Therefore, Plaintiff fails to meet the pleading standard required by Rule 9(b).

In response to the Motion to Dismiss, Plaintiff argues that a less onerous standard should apply to her fraud claims. However, Plaintiff's argument is inconsistent with Tenth Circuit precedent. Further, to support her claim, Plaintiff also points to Defendants' FDA filing in which they represented that the Wright Hip System was "substantially equivalent" to other hip replacement products on the market and omitted certain distinguishing features.23 However, Plaintiff's claim cannot be based on Defendant's alleged false statement to the FDA because "state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by, federal law."24 For these reasons, Plaintiff's fraud claims must be dismissed.

E. NEGLIGENT MISREPRESENTATION

"The elements of negligent misrepresentation are similar to those of fraud except that negligent misrepresentation `does not require the intentional mental state necessary to establish fraud.'"25 Plaintiff's negligent misrepresentation claim is also subject to the requirements of Rule 9(b).26 For substantially the same reasons that Plaintiff's fraud claims are subject to dismissal, so too is her negligent misrepresentation claim. Plaintiff fails to adequately allege the alleged false representations and fails to allege sufficient facts demonstrating reliance.

F. PUNITIVE DAMAGES

Under Utah law,

Defendant argues that Plaintiff's request for punitive damages should be stricken because the remaining claims would, at most, "rise only to the level of negligence."28 "While simple negligence will not support punitive damages, negligence manifesting a knowing and reckless indifference toward the rights of others will."29

At this stage of the litigation, the Court is unwilling to strike Plaintiff's request for punitive damages. As set forth above, motions to strike are disfavored and rarely granted. It is unclear at this point whether Plaintiff will be able to demonstrate that Defendant's alleged negligence manifests a knowing and reckless indifference toward the rights of others. Therefore, the Motion will be denied on this ground.

G. PREJUDMENT INTEREST

*5 Under Utah law,

"[S]pecial damages are `those expenses that [plaintiff's] have paid out of pocket, for which they have used their own money and which they will not get until the settlement of their action.'"31 Special damages do "not include damages for future medical expenses, loss of future wages, or loss of future earning capacity."32

The Court declines to strike Plaintiff's request for prejudgment interest. Defendant is correct that Plaintiff requests prejudgment generally and, in some circumstances, would be precluded by statute. However, Plaintiff also requests damages for past medical expenses, lost wages, and loss of earning capacity. Such damages may constitute special damages that would allow recovery of prejudgment interest under the statute.33 Any concerns that Defendant has can be address by a special verdict form at the appropriate time. Therefore, the Motion is denied on this ground.

IV. CONCLUSION

It is therefore

ORDERED that Defendant's Partial Motion to Dismiss Plaintiff's Complaint and Motion to Strike (Docket No. 7) is GRANTED IN PART AND DENIED IN PART as set forth above.

All Citations

Slip Copy, 2018 WL 5792325

Exhibit B

Attorneys and Law Firms

Nancy A. Mismash, Robert J. Debry & Associates, Salt Lake City, UT, for Plaintiff.

Danielle N. Bagwell, Pro Hac Vice, Duane Morris LLP, Philadelphia, PA, Elisabeth M. McOmber, Snell & Wilmer LLP, Salt Lake City, UT, Sean K. Burke, Pro Hac Vice, Duane Morris LLP, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT WRIGHT MEDICAL GROUP'S MOTION TO DISMISS

Stewart, United States District Judge

*1 This matter is before the Court on Defendant Wright Medical Group, Inc.'s Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction. For the foregoing reasons, the Court grants Defendant's Motion to Dismiss.

I. BACKGROUND

Plaintiff Diane Jorgenson filed her Complaint against Defendants Wright Medical Group, Inc. ("WMG") and Wright Medical Technology, Inc. ("WMT") on May 4, 2018. WMT is a wholly owned subsidiary of WMG, and both are Delaware corporations with their principal places of business in Tennessee. Plaintiff's Complaint concerns injuries from the Wright Hip System used in her right and left hip replacement surgeries on June 1, 2009, and January 25, 2010, respectively. According to Plaintiff, this Court has specific jurisdiction over Defendants in this case because both Defendants "conducted regular and sustained business in Utah by selling and distributing its products in Utah, and engaged in substantial commerce and business activity in the County of Salt Lake."1 Plaintiff also alleges that "Defendants, either directly or through their agents, apparent agents, servants or employees, sold, distributed and marketed the defective Wright Hip System in the State of Utah."2

On July 25, 2018, Defendant WMG filed its Motion to Dismiss, alleging that "WMG was merely a holding company with no involvement in the design, development, manufacture, marketing, or sale of the hip implant components at issue. . . . Simply put, WMG is the parent company of WMT and is WMT's sole shareholder."3 WMG admits that Defendant WMT "did design, manufacture, and sell hip implants like that alleged to have been implanted in Plaintiff," but states "WMG did not."4

II. DISCUSSION

"To obtain personal jurisdiction over a nonresident defendant . . . a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment."5 Utah's long-arm statute provides "jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause of the Fourteenth Amendment,"6 so only the due process analysis is necessary to determine whether this Court has jurisdiction over WMG in this case.

Here, Defendant WMG brought a motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). "The Plaintiff bears the burden of establishing personal jurisdiction over the defendant,"7 and when a district court rules on this kind of motion without an evidentiary hearing, "the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion."8 In these situations, "the allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits."9 "However, only the well pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true."10

*2 The Supreme Court has established two main frameworks for establishing personal jurisdiction under the due process clause of the Fourteenth Amendment, including general and specific jurisdiction.11 Plaintiff relies on specific jurisdiction to establish jurisdiction over WMG,12 so this case only requires a specific jurisdiction analysis. There is specific jurisdiction when A) "the plaintiff has shown that the defendant has minimum contacts with the forum state,"13 or B) there may be jurisdiction over WMG through the alter ego theory.

A. Minimum Contacts

The Supreme Court explained that "due process requires only that . . . [the defendant] have certain minimum contacts with [the forum state] that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"14 To establish minimum contacts, "the relationship [with the forum state] must arise out of contacts that the `defendant himself creates with the forum State,"15 and the "analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there."16 Minimum contacts also requires that "the plaintiff's claim arises out of or results from `actions by the defendant himself that create a substantial connection with the forum state.'"17

Plaintiff's Complaint alleges WMG and WMT both "sold, distributed and marketed the defective Wright Hip System in the State of Utah,"18 but Defendant WMG submitted an affidavit with its Motion to Dismiss controverting this allegation. According to the affidavit, WMG has no contacts with Utah because it "is not registered to do business in Utah, does not transact business in Utah, maintains no office or place of business in Utah, owns no real property in Utah, and has no clients or employees in Utah,"19 The affidavit also explains that WMG "does not advertise, market, or offer services for sale in Utah."20

Plaintiff argues the allegations in her Complaint "on their face confer personal jurisdiction over [WMG]"21 because the Court should accept the allegations in the Complaint as true, but this is only "to the extent they are uncontroverted by the defendant's affidavits."22 Here, the Complaint's allegations are not enough to establish jurisdiction because Defendant presented an affidavit that controverts Plaintiff's allegations. Further, the personal jurisdiction requirements "must be met as to each defendant,"23 but Plaintiff's Complaint merges WMG and WMT together without adequately explaining which company does what in connection with her claims. Because these allegations are not specific, they do not clearly establish whether this Court has jurisdiction over both companies in this case.

*3 To counter Defendant's affidavit, Plaintiff relies on WMG's SEC filings, press releases, and other cases in which WMG appears as a defendant. In regards to the SEC filings, Defendant's 2001 10-K Report says WMG "specializ[es] in the design, manufacture, and marketing of reconstructive joint devices" and "offers a comprehensive line of products for hip joint reconstruction."24 This annual filing also says that "[a]s of December 31, 2001, the Company employed directly and through our subsidiaries 751 people."25 Plaintiff also looks to a 2014 10-K report in which Defendant says it is a "defendant in 25 lawsuits" for personal injury.26

The Tenth Circuit has explained that it is a "common business practice" for parent and subsidiary companies to consolidate their financial reports,27 so the 2001 SEC filings do not establish that WMG actually designed, manufactured, or marketed the implant devices. Later SEC filings confirm that WMG operates through WMT and other subsidiaries.28 Additionally, the SEC filings do not mention Utah at all, so they do not provide any evidence that WMG purposely directed any of its activities to Utah or Utah residents.

Around the country, several federal district courts have dismissed WMG from cases against Defendants when the plaintiff's have used the same evidence Plaintiff included.29 Dumler and Simpson used the same reports to try to establish specific personal jurisdiction.30 These courts both reasoned that "[c]ourts have recognized that companies may omit distinctions between related corporate entities in their SEC filings, and still insist on these distinctions when haled into court."31 Ultimately, these SEC filings are not sufficient to establish that WMG purposely directed its activities to Utah or Utah residents. Plaintiff also presents some press releases from 2006 and 2014. In the 2006 press release, WMG describes itself as a "global orthopedic medical device company specializing in the design, manufacture and marketing of reconstructive joint devices."32 One 2014 press release is from the sale of OrthoRecon, and there is a 2014 press release about WMG acquiring OrthoPro, which is based in Salt Lake City, Utah.

These press releases do not establish a sufficient connection with Utah. While the latter press release does appear to establish some connection with Utah, there must also be a connection between WMG's activities in Utah and Plaintiff's claims to support a finding of specific jurisdiction. Plaintiff does not allege that OrthoPro or its foot and ankle products are related to Plaintiff's claims regarding her hip implants. The court in Sarafian considered the same and similar press releases and found that "none of these documents is evidence that WMG has any contacts in California."33 This Court comes to the same conclusion and finds that none of these documents amount to evidence that WMG has sufficient minimum contacts in Utah to establish jurisdiction over WMG in this case.

*4 Finally, Plaintiff points out two cases where courts have denied WMG's motions to dismiss for lack of personal jurisdiction and one case where the court failed to grant a motion for summary judgment in favor of WMG. Of the two cases Plaintiff alleges denied WMG's motions to dismiss, one of them took the issue under advisement to allow for jurisdictional discovery, and the other recognized that "the question of jurisdiction . . . can be raised at any time" because it was unclear whether there would be jurisdiction after discovery.34 As Defendant points out, Christiansen v. Wright Medical Group actually went to trial after the motion for summary judgment was denied, and "both plaintiff and defense counsel agreed that a directed verdict was appropriate on all claims against WMG because there was no evidence that WMG had any involvement with the allegations underlying plaintiff's complaint."35 Ultimately, these cases do not provide legal support to show WMG has minimum contacts in Utah.

Because Plaintiff failed to make a connection between WMG's activities and the forum and Plaintiff's claims, Plaintiff has not made a prima facie showing that WMG has minimum contacts in Utah. Therefore, this Court does not have specific jurisdiction over WMG in this case.

B. Alter Ego Theory

In the Motion to Dismiss, Defendant argued that the alter ego theory cannot apply to WMG and WMT to establish personal jurisdiction over WMG. In her Response to the Motion to Dismiss, Plaintiff did not allege that there could be jurisdiction over WMG based on an alter ego theory, but her Complaint did briefly allege that "each of the Defendants was the representative, agent, employee, joint venture, or alter ego of each of the other Defendants,"36 so the Court will apply an alter ego analysis.

"Ordinarily a corporation is regarded as a legal entity, separate and apart from its stockholders."37 Under Utah law, the alter ego theory allows courts to disregard the corporate form when two requirements are met: "(1) there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist . . . and (2) the observance of the corporate form would sanction a fraud, promote injustice, or an inequitable result would follow."38

Plaintiff's only evidence suggesting WMG and WMT do not have "separate personalities" are the facts already discussed regarding the SEC filings from 2001 and 2014 and the 2006 and 2014 press releases. As discussed above, combining parent and subsidiary corporations in these statements is a normal business practice that does not conclusively establish that WMG and WMT are essentially the same corporation. The plaintiff in Dumler relied on WMG's financial gain from the sale of OrthoRecon as evidence that WMG is the alter ego of WMT. The court in Dumler found "[t]hese assertions fall short of establishing that WMG is the alter ego of WMT" because "collective reference does not establish that corporate formalities have been ignored or that WMG is the alter ego of WMT."39 This is consistent with the prior analyses of this evidence, so this is not enough to establish that the "separate personalities of the corporation[s] . . . no longer exist."40

To support the assertion that the two corporations do have separate personalities, Defendant's affidavit explains that WMG "maintains separate accounting and banking records from the accounting and banking records of [WMT]."41 Plaintiff has not rebutted this statement. In addition, Plaintiff offers no allegations that Defendants are committing any fraud or injustice with the observance of the corporate form. Plaintiff has not established the required elements for the alter ego theory to apply, so the alter ego theory cannot establish personal jurisdiction over WMG through WMT's actions in this case.

C. Jurisdictional Discovery

*5 Plaintiff argues, in the alternative, to allow jurisdictional discovery. "The trial court . . . is vested with broad discretion" to determine whether jurisdictional discovery is appropriate in a particular case.42 "The district court does not abuse its discretion by denying jurisdictional discovery where there is a very low probability that the lack of discovery" would affect the outcome of the case.43

In her argument for jurisdictional discovery, Plaintiff asserts "the Bill of Print Material documents" used in the Christiansen case "will most likely confirm WMG's direct involvement in the hip system at issue that was implanted in Plaintiff in the forum Utah."44 As described above, the Christiansen court later dismissed WMG from the case for lack of evidence of WMG's involvement, despite the fact that the plaintiff had the Bill of Print Material documents. These are the only documents Plaintiff specifically suggests would help establish specific jurisdiction, and it is highly unlikely the documents would establish this Court's jurisdiction over WMG. As a matter within this Court's discretion, this Court will not allow jurisdictional discovery in this case.

III. CONCLUSION

It is therefore

ORDERED that Defendant Wright Medical Group, Inc.'s Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction (Docket No. 9) is GRANTED.

All Citations

Slip Copy, 2018 WL 6250606