E.K., et al. v. Cooper Companies Inc, The et al

E.K., et al.,
v .
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
Case No. l:24-cv-747
Plaintiffs, 	Judge Matthew W. McFarland
THE COOPER COMPANIES, INC.,
et al.,
Defendants.
ORDER GRANTING THIRD-PARTY
DEFENDANTS' MOTIONS TO DISMISS (Docs. 22, 24)
This matter is before the Court on the Motions to Dismiss for Lack of Personal
Jurisdiction filed by Third-Party Defendants Hamilton Thorne Ltd. and Embryotech
Laboratories 	Inc. 	(Docs. 	22, 	24). 	Third-Party Plaintiff CooperSurgical, 	Inc. 	filed 	a
Consolidated Response in Opposition (Doc. 31), to which Third-Party Defendants filed a
Consolidated Reply in Support (Doc. 33). CooperSurgical also filed a Request for Judicial
Notice (Doc."30), and Third-Party Defendants filed two Motions for Leave to File Notice
of Supplemental Judicial Opinion (Docs. 34, 36). This matter is ripe for the Court's review.
As an initial matter, the Court GRANTS Third-Party Defendants' Motions for Leave to
File Notice of Supplemental Judicial Opinion (Docs. 34, 36). For the reasons below, the
Court GRANTS IN PART CooperSurgical's Request for Judicial Notice (Doc. 30) and
GRANTS Third-Party Defendants' Motions to Dismiss (Docs. 22, 24).
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BACKGROUND
Defendant and Third-Party Plaintiff CooperSurgical produces embryo culture
media ("media"), which are solutions used to form and develop embryos in the early
stages of in vitro fertilization ("IVF"). (Am. Compl., Doc. 11, ,r,r 1-6, 22, 27.) Plaintiffs E.K.
and N.D. assert product liability claims against CooperSurgical, alleging that defects in
CooperSurgical's media destroyed their embryos during an IVF procedure. (Id. at ,r,r 6,
83-111.) Plaintiffs seek compensatory and punitive damages from CooperSurgical. (Id. at
Embryotech, a subsidiary of Hamilton Thorne, conducts quality testing on media
products for companies before they are distributed to IVF clinics. (Third-Party Compl.,
Doc. 15, ,r 9.) Embryotech is a Delaware corporation with its principal place of business
located in Haverhill, Massachusetts, and Hamilton Thorne is a Canadian corporation
with its principal place of business located in Beverly, Massachusetts. (Id. at ,r,r 5-6.) In
accordance with a 2023 agreement, Embryotech conducted quality testing on media
produced by CooperSurgical. (Id. at ,r,r 34-48.) This testing took place at Embryotech' s
Haverhill, Massachusetts testing facility. 	(2023 Agreement, Doc. 31-1, Pg. ID 573.)
CooperSurgical filed 	its Third-Party Complaint against Embryotech and Hamilton
Thorne on April 16, 2025. (Third-Party Compl., Doc. 15). The Third-Party Complaint
alleges that Embryotech failed to adequately test the media at issue in Plaintiffs'
Amended Complaint, and brings claims for implied indemnification and contribution
under Ohio Revised Code§ 2307.25. (Id. at ,r,r 65-67.) Embryotech and Hamilton Thorne
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subsequently filed separate Motions to Dismiss for Lack of Personal Jurisdiction (Docs.
22, 24).
LAW&ANALYSIS
As a preliminary matter, the Court will consider CooperSurgical' s Request for
Judicial Notice (Doc. 30) in connection with its Response in Opposition to Third-Party
Defendants' Motions to Dismiss (Doc. 31). Then, the Court will turn to the personal
jurisdiction analysis.
I. 	Request for Judicial Notice
CooperSurgical requests that the Court take judicial notice of certain pages of what
appears to be the Embryotech website, as well as a page on the United States Centers for
Disease Control and Prevention ("CDC") website. (Request for Judicial Notice, Doc. 30,
Pg. ID 525.) Under Rule 201 of the Federal Rules of Evidence, a court can take judicial
notice of a fact that is "not subject to reasonable dispute" because (1) it is "generally
known" within the territorial jurisdiction of the trial court, or (2) it" can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned." Fed.
R. Evid. 201(b). Public records and government documents, including those available on
the internet, are generally not considered to be "subject to reasonable dispute." Total
Benefits Planning Agency Inc. v. Anthem Blue Cross & Blue Shield, 630 F. Supp. 2d 842, 849
(S.D. Ohio 2007).
As it relates to the pages of the purported Embryotech website, CooperSurgical' s
request presents two problems. First, it is possible that this website is no longer consistent
with how it appeared during the relevant period in the Third-Party Complaint. Second,
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the Court cannot verify the accuracy of the information found on this non-government
website. See Plateau Cos. Ins. Co. v. Securranty, Inc., 608 F. Supp. 3d 566, 571 (M.D. Tenn.
2022) (" [I]t is generally improper for a court to take judicial notice of a non-governmental
website, particularly when it is used for the truth of the matter, and not its mere
existence.").
For these reasons, the professed Embryotech website may be subject to reasonable
dispute and the Court declines to take judicial notice of it at this juncture. However, given
that this request is unopposed and that the website pages do not change the personal
jurisdiction outcome in this case, the Court considers the website in the analysis below.
Additionally, the Court will take judicial notice of the CDC website.
II. Motion to Dismiss for Lack of Personal Jurisdiction
When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff
has the burden to prove jurisdiction exists. CompuServe Inc. v. Patterson, 89 F.3d 1257,
1261-62 (6th Cir. 1989). When resolving the personal jurisdiction issue before trial, a court
may either: (1) determine the issue considering only affidavits; (2) permit discovery; or
(3) conduct an evidentiary hearing on the merits alone. Intera Corp. v. Henderson, 428 F.3d
605,614 n. 7 (6th Cir. 2005). If a hearing is not held, the plaintiff must make only a prima
facie showing of personal jurisdiction, with the pleadings and affidavits viewed in a light
most favorable to the plaintiff. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.
1998). 	A plaintiff makes 	a 	prima facie 	showing by "establishing with reasonable
particularity sufficient contacts between [the defendants] and the forum state to support
jurisdiction." Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). The
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Court may, however, consider a defendant's undisputed factual assertions. Conn v.
Zakharov, 667 F.3d 705, 711 (6th Cir. 2012). Here, no party has requested an evidentiary
hearing, and the Court does not find one necessary for resolving the pending matter.
Accordingly, 	CooperSurgical must only provide 	prima facie 	evidence 	of personal
jurisdiction.
Under Federal Rule of Civil Procedure 12(b)(2), a court must dismiss an action if
it lacks personal jurisdiction over a defendant. Dualite Sales & Servs. v. Anthologic, Inc.,
No. l:24-CV-479, 2025 U.S. Dist. LEXIS 127033, at *3 (S.D. Ohio July 3, 2025). There are
two varieties of personal jurisdiction-general and specific. Ford Motor Co. v. Montana
Eighth Jud. 	Dist. Ct., 592 U.S. 351, 358 (2021). CooperSurgical concedes that general
jurisdiction does not apply in this case. (See Response, Doc. 31, Pg. ID 534, n.7.) Thus,
CooperSurgical must show that this Court has specific jurisdiction over Embryotech and
Hamilton Thorne.
A. 	Specific Jurisdiction
"When sitting in diversity, a federal 	court may exercise 	[specific] 	personal
jurisdiction over an out-of-state defendant only if a court of the forum state could do so."
Blessing v. Chandrasekhar, 988 F.3d 889, 901 (6th Cir. 2021) (citation omitted). "Under Ohio
law, personal jurisdiction over non-resident defendants is available only if (1) the long-
arm statute confers jurisdiction and (2) jurisdiction is proper under the Federal Due
Process Clause." Conn v. Zakharov, 667 F.3d 705, 712 (6th Cir. 2012). CooperSurgical "must
clear both the statutory and the constitutional hurdles, and the Court is free to consider
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them in either order." Baker v. Bensalz Prods., Inc., 480 F. Supp. 3d 792, 801 (S.D. Ohio
2020).
Here, because the Court finds that exercising personal jurisdiction over both
Third-Party Defendants would violate the Due Process Clause, the Court's analysis
begins and ends with this inquiry. The Due Process Clause requires a court to first
determine that a defendant "not present within the territory of the forum ... ha[ s] certain
minimum contacts" with the forum as not to offend "traditional notions of fair play and
substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quotations
omitted). A three-part test guides this inquiry: (1) "the defendant must purposefully avail
himself of the privilege of acting in the forum state or causing a consequence in the forum
state[;]" (2) "the cause of action must arise from the defendant's activities there[;]" and
(3) "the acts of the defendant or consequences caused by the defendant must have a
substantial enough connection with the forum state to make the exercise of jurisdiction
over the defendant reasonable." Nationwide Mut. Ins. Co. v. Tryg Int'[ Ins. Co., Ltd., 91 F.3d
790, 794 (6th Cir. 1996) (citing S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374,381 (6th
Cir. 1968)).
1. 	Purposeful A vailment
For a defendant to purposefully avail himself of a court's jurisdiction, his contacts
with the forum state must "proximately result from actions by the defendant himself that
create a substantial connection with the forum State." Burger King Corp. v. Rudzewicz, 471
U.S. 462, 475 (1985) (quotations omitted). Thus, purposeful availment results when a
defendant" deliberately ... engage[s] in significant activities within a State" or "create[s]
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continuing obligations between himself and residents of the forum." 	Id. at 475-76.
However, purposeful av ailment does not result when the defendant's contacts with the
forum state are "random, fortuitous, or attenuated." Id. at 475.
CooperSurgical 	alleges 	that 	Third-Party 	Defendants 	purposefully 	availed
themselves 	of Ohio by knowing that "they were responsible for 	performing pre-
distribution quality 	assurance 	tests 	on 	the 	embryo culture media 	that would 	be
distributed to IVF clinics across the country, including to clinics in Ohio." (Third-Party
Compl., Doc. 15, ,r 9.) Specifically, CooperSurgical first advances a stream of commerce
theory. (Response, Doc. 31, Pg. ID 535-40.) "[T]he placement of a product into the stream
of commerce, without more, is not an act of the defendant purposefully directed toward
the forum State." Bridgeport Music, Inc. v. Still N the Water Publ'g, 327 F.3d 472, 479 (6th
Cir. 2003) (citing Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1987)
(plurality opinion)). Instead, there must also be a showing that the defendant displayed
11
an intent or purpose to serve the market in the forum State." Asahi, 480 U.S. at 12. Such
a showing can be made by demonstrating a II
plus" factor such as "defendant's direction
or control over the flow of the product into the forum; the quantity of the defendant's
particular product regularly flowing into the forum; and the distinctive features of the
forum that connect it with the product in question." Bullock v. Otto Imports, No. 4:19-CV-
149, 2020 WL 5803517, at *2 (W.D. Ky. Sept. 3, 2020).
In support of its stream of commerce theory, CooperSurgical contends that Third-
Party Defendants participated in the manufacturing of its media product, analogizing the
testing services provided by Third-Party Defendants to the manufacturing of component
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parts. (Response, Doc. 31, Pg. ID 536.) CooperSurgical then posits that Third-Party
Defendants' supposed participation in the manufacturing of the media would expose it
to personal jurisdiction here because Third-Party Defendants knew that the media could
be distributed in Ohio. (Id. at Pg. ID 538.) This conjecture falls flat for two reasons.
First, the testing of the media by Third-Party Defendants constituted the provision
of a service, not the manufacturing of a product. CooperSurgical does not provide any
authority in the Sixth Circuit that applies the stream of commerce theory to services. The
inapplicability of stream of commerce jurisdiction to services rendered is logical-
" [w]hen an entity creates 	and sells 	a 	product, that product-and any defects 	or
liabilities-travel with it." Angel's Dream, LLC v. Toledo Jet Ctr., LLC, 721 F. Supp. 3d 601,
614 (N.D. Ohio 2024). Services, unlike products, "have a beginning and an end. Once the
service is complete, it is done. It does not travel, as does a product." Id.
CooperSurgical argues that the reasoning in Angel's Dream does not apply here
because, unlike the defendants in Angel's Dream, Third-Party Defendants participated in
the chain of distribution of CooperSurgical' s media product. (Response, Doc. 31, Pg. ID
537.) In support of this contention, CooperSurgical notes that Third-Party Defendants'
testing services influenced which media products were ultimately distributed. (Id.) In
Angel's Dream, though, the defendants provided third-party airworthiness testing prior
to the sale of an aircraft. Angel's Dream, 721 F. Supp. 3d at 605-06. The defendants in that
case did not participate in the manufacturing, distribution, sale, or purchase of the
aircraft. Id. Thus, like Third-Party Defendants, the defendants in Angel's Dream provided
pre-sale testing that others relied upon when deciding whether to proceed with a
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transaction. As such, CooperSurgical's attempt to distinguish Angel's Dream from the
instant matter is unconvincing.
Second, even if Third-Party Defendants could be considered participants in the
manufacturing of CooperSurgical' s media product, their alleged knowledge that the
media would be distributed nationally is not enough to establish purposeful availment.
By itself, a defendant's knowledge that a product may be distributed across the nation II
is
insufficient conduct upon which to predicate purposeful availment." Bridgeport Music,
Inc. v. Still N the Water Publ'g, 327 F.3d 472,480 (6th Cir. 2003). Instead, a defendant must
make a II
deliberate 	decision" 	to 	disseminate a 	product into all fifty 	states- mere
awareness that a third party will distribute a product nationwide will not suffice. Parker
v. Winwood, 938 F.3d 833, 841 (6th Cir. 2019).
Having failed to establish that Third-Party Defendants placed a product into the
stream of commerce, CooperSurgical advances only one "plus" factor, noting that
Embryotech engaged in business solicitation at trade shows and on the internet. (See
Response, Doc. 31, Pg. ID 539-40.) This activity, CooperSurgical argues, shows that Third-
Party Defendants purposefully solicited business from a national market, which includes
Ohio. (Id. at Pg. ID 540.) While "advertising is among the activities that constitute
reaching out to forum state residents," merely soliciting from a national audience,
without a showing that such solicitation targets or actually reaches the forum state, is
insufficient to demonstrate purposeful availment. Bridgeport Music, 327 F.3d at 481
(cleaned up). Further, because these solicitation activities do not relate to the media
product at issue in this case, they fall short of establishing that Third-Party Defendants
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controlled or directed the flow of media into Ohio. Finally, CooperSurgical identifies no
distinctive characteristics of Ohio that would connect it with the media product at issue
here more than it would any other state. As such, CooperSurgical fails to show a required
"plus" factor in presenting its stream of commerce theory.
After advancing its stream of commerce theory, CooperSurgical next argues that
Third-Party Defendants availed themselves of Ohio law because Embryotech maintains
a website that solicits business from a national audience, which includes Ohio. (Response,
Doc. 31, Pg. ID 540-41.) "A defendant purposefully avails itself of the privilege of acting
in a state through its website if the website is interactive to a degree that reveals
specifically intended interaction with residents of the state." Neogen Corp. v. Neo Gen
Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002). However, a website with interactive
features that facilitate communications with individuals in a state, without a showing
that such communications are specifically intended to target the state, is insufficient to
establish purposeful availment. See See, Inc., v. Imago Eyewear Pty, Ltd., 167 F. App'x 518,
522 (6th Cir. 2006).
As discussed above, CooperSurgical asks the Court to take judicial notice of
Embryotech's website. (Request for Judicial Notice, Doc. 30.) CooperSurgical contends
that this interactive website solicits business and includes features that allow prospective
customers to contact the company, ask for a phone call, and request a quote for testing
services. (Response, Doc. 31, Pg. ID 540.) But, even if the Court were to take judicial notice
of these facts, this website alone is not enough to show that Third-Party Defendants
"specifically intended" to aim their conduct at Ohio-the mere possibility that an Ohio
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resident might visit the website is not indicative of any degree of geographic targeting.
See, e.g., Growella, Inc. v. Ganz, No. 1:23-CV-832, 2024 U.S. Dist. LEXIS 145144, at *3, *8
(S.D. Ohio Aug. 14, 2024); Cadle Co. v. Schlichtmann, 123 F. App'x 675, 678 (6th Cir. 2005).
As such, purposeful availment by Third-Party Defendants is not established here.
ii. 	Arising from Contacts with the Forum
The prospect of exercising jurisdiction over Third-Party Defendants also runs
aground on the second prong. Though a cause of action need not "formally" arise from a
defendant's contacts with the forum, "the operative facts [must] at least marginally
relate □ to the alleged contacts between the defendant and the forum." Air Prod. &
Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544,553 (6th Cir. 2007); Lyngaas v. Curaden Ag,
992 F.3d 412,423 (6th Cir. 2021) (quotation omitted). And, importantly, "[t]he plaintiff's
claims must arise out of or relate to the defendant's contacts with the forum" - not the
plaintiff's unilateral contacts with the forum. Ford Motor Co., 592 U.S. at 358. Here, Third-
Party 	Defendants 	did 	not manufacture 	any 	component 	of 	the 	media 	product in
question-CooperSurgical alone produced the media. (Third-Party Compl., Doc. 15, ,r,r
11-12.) CooperSurgical does not allege that Third-Party Defendants had any control over
its decision to sell or market the product. Thus, even if purposeful availment were present
here, personal jurisdiction is lacking because CooperSurgical' s causes of action do not
arise from Third-Party Defendants' activities in Ohio.
Additionally, CooperSurgical's website theory of purposeful availment also fails
at the second prong. An interactive website that is available nationally, even if sufficient
to establish purposeful availment, must also be "the basis of the cause of action against
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the 	defendant" 	for 	such 	a 	theory 	to 	support 	personal 	jurisdiction. 	Cadle 	Co. 	v.
Schlichtmann, 123 F. App'x 675,678 (6th Cir. 2005). CooperSurgical does not show that its
causes of action against Third-Party Defendants arose from CooperSurgical's purported
use of the Embryotech website in Ohio. Thus, even if CooperSurgical could demonstrate
purposeful availment by showing that Embryotech' s website was specifically intended
for an Ohio audience, personal jurisdiction would still be lacking.
For all these reasons, CooperSurgical has not shown that the Court can properly
exercise personal jurisdiction over Embryotech.
B. 	Alter-Ego Theory of Jurisdiction
CooperSurgical also argues for exercising personal jurisdiction over Hamilton
Thorne under an alter-ego theory due to its relationship with Embryotech. (Response,
Doc. 31, Pg. ID 543-46.) "[F]ederal courts have consistently acknowledged that it is
compatible with due 	process for a court to exercise personal jurisdiction over an
individual or a corporation that would not ordinarily be subject to personal jurisdiction
in that court when the individual or corporation is an alter ego or successor of a
corporation that would be subject to personal jurisdiction in that court." Est. of Thomson
ex rel. Est. of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 362 (6th Cir. 2008)
(quotation 	omitted). 	In 	this 	case, 	as 	the 	Court 	lacks 	personal 	jurisdiction 	over
Embryotech, the alter-ego theory of jurisdiction pertaining to Hamilton Thorne is
unavailing.
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C. 	Jurisdictional Discovery
CooperSurgical finally requests that the Court grant leave to conduct jurisdictional
discovery if it is inclined to find a lack of personal jurisdiction. (Response, Doc. 31, Pg. ID
547-48.) A district court has discretion to grant or deny jurisdictional discovery, and a
party does not have an unqualified right to such discovery. Angel's Dream, LLC v. Toledo
Jet Ctr., LLC, 684 F. Supp. 3d 663, 670 (N.D. Ohio 2023). In requesting jurisdictional
discovery, plaintiffs "must do more than 'merely assert' the need for discovery; instead,
they must 'explain what evidence relevant to ... jurisdiction they [would be] denied from
obtaining."' C.H. By & Through Shields v. United States, 818 F. App'x 481,484 (6th Cir. 2020)
(quotation 	omitted). Such a 	request 	must 	also 	provide 	the 	district 	court with 	a
"reasonable basis to expect that discovery would reveal evidence that supports the
claimed jurisdiction." Id. (cleaned up).
Here, CooperSurgical seeks jurisdictional discovery to uncover potential contracts
between Third-Party Defendants and clinics and universities in Ohio, potential business
solicitation activities by Third-Party Defendants involving Ohio, and whether and to
what degree the Embryotech website targets Ohio. (Response, Doc. 31, Pg. ID 548.) The
Court does not find such jurisdictional discovery necessary. CooperSurgical fails to
identify a reasonable basis to expect that any particular evidence could be revealed
through discovery to alter the Court's preceding jurisdictional analysis. Mere speculation
or conjecture will not suffice. See C.H., 818 F. App' x at 484-85. As such, the Court therefore
denies CooperSurgical's request for jurisdictional discovery.
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CONCLUSION
For the foregoing reasons, the Court ORDERS the following:
1) 	Third-Party Defendants' Motions for Leave to File Notice of Supplemental
Judicial Opinion (Docs. 34, 36) are GRANTED;
2) 	CooperSurgical' s Request for Judicial Notice (Doc. 30) is GRANTED IN PART;
3) 	Third-Party Defendants' Motions to Dismiss (Docs. 22, 24) are GRANTED;
4) 	CooperSurgical's Third-Party Complaint (Doc. 15) is DISMISSED WITHOUT
PREJUDICE; and
IT IS SO ORDERED.
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UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
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