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Kuhnmuench v. Livanova PLC

United States District Court, E.D. Michigan, Southern Division

November 15, 2017

PETER KUHNMUENCH and THERESA KUHNMUENCH, Plaintiffs,
v.
LIVANOVA PLC; LIVANOVA HOLDING USA, INC.; and LIVANOVA DEUTSCHLAND GMBH, Defendants.

          Stephanie Dawkins Davis United States Magistrate Judge.

          OPINION AND ORDER GRANTING DEFENDANT LIVANOVA DEUTSCHLAND'S MOTION TO (1) VACATE CLERK'S ENTRY OF DEFAULT AND (2) FILE ANSWER TO FIRST AMENDED COMPLAINT

          Paul D. Borman United States District Judge.

         This is a product-liability action brought by Plaintiffs Peter and Theresa Kuhnmuench against three related defendants: LivaNova PLC (“LivaNova”), LivaNova Holding USA, Inc. (“LivaNova USA”), and LivaNova Deutschland GmbH (“LivaNova Deutschland”). Before the Court is LivaNova Deutschland's Motion to Vacate the Clerk's Entry of Default and File an Answer to the First Amended Complaint. (ECF No. 21.) For the reasons below, the Court will grant LivaNova Deutschland's Motion.

         I. BACKGROUND

         Each of the three Defendants in this action has proceeded differently in litigating this matter so far. As the instant Motion was filed by LivaNova Deutschland alone, the following procedural history concerns that Defendant only.

         Plaintiffs filed their initial Complaint on May 31, 2017. (ECF No. 1, Compl.) The Complaint alleged that in the course of undergoing heart surgery in 2014, Plaintiff Peter Kuhnmuench suffered a severe infection as a result of bacteria that originated in a device used during the operation: the Sorin 3T Heater-Cooler System. (Compl. ¶¶ 40-59.) The Complaint further alleged that the 3T Heater-Cooler System was “designed, manufactured, marketed, and/or sold by” Defendants to the hospital at which the surgery was performed. (Compl. ¶¶ 17-30.) Invoking this Court's diversity jurisdiction, the Complaint asserted five claims: Negligence (Count I), Breach of Implied Warranty of Fitness (Count II), Breach of Express Warranty (Count III), Gross Negligence (Count IV), and a derivative Loss of Consortium claim asserted by Plaintiff Theresa Kuhnmuench, Peter's wife (Count V). (Compl. ¶¶ 60-86.)

         On the same day the Complaint was filed, Plaintiffs' counsel Justin Hakala sent a copy of the Complaint to seven attorneys-three of whom work for a law firm that represents Defendants in this action and two of whom have since appeared in this case. In the email, Hakala stated that he understood that the recipients represented the Defendants in this case in other actions, and for that reason was forwarding them a courtesy copy of the Complaint. (ECF No. 26, Pls.' Resp. Ex. 1.)

         Five days later, on June 5, 2017, Hakala sent requests for waiver of service to LivaNova and LivaNova Deutschland. (Pls.' Resp. Ex. 2.) Three days after that, Defendants' counsel Linda S. Svitak responded to the waiver request sent to LivaNova (without making reference to the request sent to LivaNova Deutschland) in an email to Hakala. The first paragraph of that email read as follows:

[LivaNova] received your request for a waiver of service which includes a statement that you will seek the costs of service if it fails to accept service. While this may be possible for defendants located in the U.S., you have chosen to sue a foreign corporation and it has the right to expect that procedural rules will be followed, including those related to service. Consequently, a foreign corporation is not penalized for exercising its rights to proper service of process, and Fed.R.Civ.P. 4(d)(2) regarding failure to waive service expressly applies only to “a defendant located in the United States.”[1] It does not apply to foreign corporations headquartered in Europe, which are subject to separate privacy and procedural laws.

(Pls.' Resp. Ex. 3.) Svitak went on to argue that LivaNova was not subject to personal jurisdiction in Michigan or elsewhere in the United States, and offered to discuss the matter further. (See id.)

         On June 24, 2017, Svitak emailed Hakala again, stating in pertinent part:

I am writing for clarification as to the current status of service in the above case as it is confusing. Some time ago, you mailed requests for waivers of service to LivaNova and [LivaNova Deutschland], which they declined for a number of reasons. Since that time, it appears that [LivaNova USA] has been served three separate times-- on June 8, 13 and 14-and we will be answering soon on behalf of [LivaNova USA]. However, we are not aware if either LivaNova or [LivaNova Deutschland] has been served. Could you please confirm for me?

(ECF No. 22, Declaration of Jared Briant Ex. A, June 24 Email.) Hakala did not respond. (Briant Decl. ¶ 6.)

         After LivaNova Deutschland refused to waive service, Plaintiffs had the summons and complaint translated into German and served on LivaNova Deutschland pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, 20 U.S.T. 361. (See Pls.' Resp. at 7-8, Pg ID 902-03.) Plaintiffs' certificate of service, filed on September 8, 2017, reflects that the summons and complaint were delivered to LivaNova Deutschland's office in Munich on August 11, 2017. (ECF No. 18.) Defendants' counsel Jared Briant avers that LivaNova Deutschland did not send the summons and complaint to him until August 23, and that he “through inadvertence” did not open the attachment to the email (which stated that an answer to the complaint was due September 1) until September 11. ...


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