United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION
KARON
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
“Oh!
what a tangled web we weave, when first we practice to
deceive.” Sir Walter Scott, Marmion: A Tale of Flodden
Field, canto VI, XVII (1808).
In this
case, Plaintiffs attempt to untangle a deceptive web of
pharmacies woven by a Mississippi family that allegedly spun
its gossamer threads throughout Mississippi, Alabama, and
Arkansas. Plaintiffs contend that this web of inter-related
but inscrutable entities, including 29 corporations and 11
individuals, operates an insurance fraud enterprise involving
Plaintiffs’ diabetes test strips. (Doc. 90.)
Specifically, Plaintiffs allege that Defendants bill
insurance companies for millions of dollars in claims for
blood-glucose test strips that have different product codes,
different price structures, and different eligibilities for
insurance reimbursement than the products Defendants actually
sell to patients.
Plaintiffs
Roche Diagnostics Corporation and Roche Diabetes Care Inc.
(collectively “Roche”) filed an Amended Complaint
that includes eight counts: (1) violation of the Racketeering
Influenced and Corrupt Organizations Act, 18 U.S.C. §
1962(c); (2) conspiracy to violate RICO, 18 U.S.C. §
1962(d); (3) common law fraud; (4) statutory fraud and deceit
under Ala. Codes §§ 6-5-101, 6-5-104; (5) civil
conspiracy to commit fraud; (6) negligent misrepresentation;
(7) unjust enrichment; and (8) money had and received.
This
matter now comes before the court on Defendants’ twelve
motions to dismiss. (Docs. 103–114.) The Corporate
Defendants[1] seek dismissal of the Amended Complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. Defendants
contend that (1) Roche failed to plead with plausibility or
particularity that Defendants violated § 1962(c); (2)
Roche failed to plead sufficient facts suggesting that anyone
identified in the complaint unlawfully conspired with anyone
else; (3) Roche’s claims for common law fraud,
statutory fraud and deceit, civil conspiracy to commit fraud,
and negligent misrepresentation fail as a matter of law; (4)
Roche’s claim for negligent misrepresentation fails
because no underlying claim exists and the intracorporate
conspiracy doctrine negates the multiplicity-of-actors
requirement; (5) Defendants do not have possession of
Roche’s money, so the claims for unjust enrichment and
money had and received fail; and (6) the complaint is a
shotgun pleading that violates Federal Rule of Civil
Procedure 8.
The
Individual Defendants[2] incorporate the Corporate
Defendants’ motion to dismiss and seek dismissal of the
Amended Complaint under largely the same arguments: failure
to state a claim pursuant to Rule 12(b)(6) or plead with
particularity under Rule 9(b). Several of the Individual
Defendants add an additional ground for dismissal: lack of
personal jurisdiction pursuant to Rule 12(b)(2). In the
interest of efficiency, the court addresses all twelve
motions to dismiss in this single Memorandum Opinion.
Plaintiffs
filed two responses: one to the Corporate Defendants’
motion to dismiss, (Doc. 133), and one to the eleven
Individual Defendants’ motions to dismiss, (Doc. 141).
The Corporate Defendants filed a reply brief, (Doc. 140), and
most of the Individual Defendants filed a consolidated reply
brief, (Doc. 151), with Defendant William H. Austin filing
separately, (Doc. 150), and Defendants Kimberly P. Carson and
Samuel Phillip Carson filing separately, (Doc. 152). The
court also allowed Plaintiffs to file a surreply brief to the
Corporate Defendants’ reply brief. (Doc. 149.) The
motions are now ripe for review.
I.
Background
Roche’s
Business
Roche,
as part of its multi-national healthcare and medical products
business, manufactures blood-glucose test strips, sold under
its Accu-Chek brand. The test strips help diabetic patients
monitor their blood sugar. To use an Accu-Chek test strip, a
patient places a drop of blood on a strip, then inserts the
strip into a meter, which provides a blood glucose reading.
In the
United States, most Accu-Chek test strips are covered by
health insurance or government programs. Two main insurance
payment methods exist: (1) pharmacy benefit insurance, which
is the same type of coverage used for prescription drugs; and
(2) medical benefit, which is the type of coverage used for
products, such as wheelchairs and catheters. Test strips
covered by medical benefit insurance are known as
not-for-retail (NFR) strips; NFR strips are distributed
through providers, normally mail-order distributors, pursuant
to specific contracts with Roche, and are not
distributed by retail pharmacies. Conversely, retail
pharmacies sell retail test strips that feature different
markings and product-identifying codes, known as the National
Drug Codes, than those on NFR test-strip boxes. Roche
typically sells its pharmacy-bound retail test strips to
authorized wholesalers-not directly to independent
pharmacies-that in turn sell the strips to pharmacies.
When a
retail pharmacy dispenses test strips to patients, the strips
are almost invariably paid for by health insurance under a
pharmacy benefit. The pharmacies then “receive
reimbursement directly from the payer, such as a health
insurance company or its pharmacy benefit manager
(PBM).” (Doc. 90 at 16.) To receive the reimbursement,
the pharmacy must submit the insurance claim; this process is
known as “adjudication.” The insurance claim
includes information demonstrating that the patient and the
product are covered by the particular insurance policy.
After
paying the pharmacies for the adjudicated test strips, the
insurers and PBMs recoup some of the cost by submitting
rebate requests to Roche-pursuant to contracts Roche
maintains with each insurer or PBM. Once Roche gets this
information, it pays rebates to the insurance companies and
PBMs. Roche receives the information in batches-normally
months after the pharmacies submit insurance claims and
receive reimbursements-and not in real time.
According
to the Amended Complaint, the “prices that wholesalers
pay to Roche for retail test strips, and the reimbursement
rates that insurance companies pay to the pharmacies under
pharmacy-benefit insurance plans, are substantially higher
than the net price Roche receives for the test strips.”
(Doc. 90 at 17.) The comparative profit Roche takes in
between retail and NFR test strips roughly equalizes after
Roche pays administrative fees and rebates to the insurance
companies and PBMs that pay for the strips.
Roche
does not pay rebates for NFR test strips.
Priority
Care’s Business
Priority
Care, also known as Corporate Defendants, is an association
of pharmacies and entities with overlapping ownership and
officers. The Priority Care entities are mainly located in
Alabama and Mississippi, with one location in Arkansas.
According to Plaintiffs, Priority Care includes both
brick-and-mortar pharmacies and shell entities-pharmacies
that solely exist on paper or that locate only nominally in a
premises.
Priority
Healthcare Corporation is a Delaware holding company wholly
owned by Konie Minga, founded in 2014 by Ms. Minga and
Kimberly Carson. PHC either owns or is affiliated with the
other Priority Care pharmacies. Ms. Minga and Ms. Carson
allegedly had no prior business experience or relevant
background in the healthcare, pharmaceutical, or insurance
industries. Phillip Minga and Sammy Phillip Carson, their
respective husbands, allegedly did have experience in the
relevant industries and actively participated in PHC’s
management.
The
registered address for PHC is 1678 Montgomery Highway, Suite
344, Birmingham, Alabama, 35216. This address is a mailbox in
a strip mall UPS Store, rented by Ms. Minga. The bulk of the
offices and mail-order storage and fulfillment work is
located in Amory, Mississippi.
In
2015, PHC and/or Ms. Minga allegedly began purchasing
existing, but unsuccessful, brick-and-mortar pharmacies in
Mississippi and Alabama. According to Roche, PHC’s
office exercised control over the pharmacists and other
employees at these pharmacies. These storefront pharmacies
appear to be independent, with separate bank accounts,
distinct market presences, and placement of their own orders
for prescription drugs and retail products. These pharmacies
have their own relationships with PBMs and distinct customer
bases. The pharmacies also retain the names they had before
they were purchased by PHC and/or Ms. Minga. The pharmacies
do not note their relation to other pharmacies in the alleged
PHC network. According to Roche, these pharmacies
individually are “generally unprofitable.” (Doc.
90 at 21.)
Roche
alleges that pharmacists from the Alabama Priority Care
pharmacies estimated that, before Priority Care bought them
out, they prescribed only a “negligible number of
blood-glucose test strips.” (Doc. 90 at 21.)
According
to the Amended Complaint, the Priority Care pharmacies’
business expanded greatly once the pharmacies became part of
the Priority Care network. For example, Vincent Pharmacy,
Inc., when it was an independent pharmacy in 2014, purchased
28 boxes of Roche’s retail test strips and adjudicated
claims for 20 of those boxes (a box contains 50 test strips).
In 2015, after its acquisition by Priority Care, that same
pharmacy adjudicated claims for 28, 000 boxes of
Roche’s retail test strips. As Roche noted, the number
of claims Vincent Pharmacy adjudicated in 2015 was “14
times the population of Vincent, Alabama.” (Doc. 90 at
22.)
In
depositions, three Alabama-based Priority Care pharmacists
explained that they use a legal, “central
filling” practice regarding the test strips. (Doc. 140
at 12.) Specifically, “Amory-based PHC pharmacy
technicians upload digitized copies of test-strip
prescriptions to a centralized database. These employees then
transmit by e-mail or fax a list of mail-order prescriptions
to Priority Care pharmacists for each pharmacist to
‘check’ by accessing the database.” (Doc.
90 at 22.) The pharmacists allegedly do not verify: (1) the
identity of the patients; (2) the identity of the doctors;
and/or (3) what product is shipped to the patients. After the
pharmacist checks the prescription, workers at the central
filling location in Amory, Mississippi affix a return-address
label with the name and address of the checking
pharmacist’s location. They then ship the test strips
to patients around the country. (Doc. 90 at 23.)
Beyond
purchasing and incorporating existing pharmacies into the
Priority Care system, PHC establishes new LLCs and registers
them as healthcare providers with the Center for Medicare and
Medicaid Services, as well as the National Council for
Prescription Drug Programs. These registrations provide each
new entity with its own taxonomic code, which PBMs and
insurers can use to keep track of adjudications. Many of
these entities appear to exist nominally, possessing only an
LLC registration and a set of identifying codes. Four unique
Priority Health entities, for example, allegedly share a
single building, located at 1600 Highland Drive in Amory,
Mississippi. (Doc. 90 at 24–25.)
Between
2013 and 2018, this combination of storefront and shell
entities adjudicated approximately 750, 000 boxes of
Roche’s test strips to insurance companies and PBMs
across the United States. Every claim included a statement
that the pharmacy had shipped a box or boxes of Roche retail
test strips. In each case, the insurance company or PBM
reimbursed the pharmacy, and then Roche would pay a rebate
back to the insurance company or PBM. Although records show
that Priority Care pharmacies submitted claims for 750, 000
retail boxes, their own purchase orders reveal that they
procured only 322, 000 boxes of retail strips while buying
410, 000 boxes of NFR test strips. (Doc. 90 at 29–34.)
Priority
Care begrudgingly gave these records to Roche in 2018,
following a lengthy series of attempts that included several
rounds of unresponsive letters, subpoenas, orders to show
cause, and court-ordered sanctions. (Id.). Roche
also procured adjudication numbers from insurance companies
and PBMs. These data showed Priority Care pharmacies shifted
the bulk of their adjudications away from their established
entities and toward the newly created ones as the PBMs and
insurance companies stopped working with Priority Care
pharmacies one by one over concerns of fraud. (Doc. 90 at
39–43.)
Although
Priority Care apparently purchased most of Roche’s test
strips on the secondary market, Roche directly sold Priority
Care about 158, 000 NFR boxes in 2016. The sale included a
contractual provision that Priority Care could not
sell the strips to pharmacies or dispense them to
patients whose insurance paid for the test strips with a
pharmacy benefit and would be eligible for a rebate. Of these
158, 000 NFR boxes, Priority Care’s records indicate
that its pharmacies processed only 182 as NFR boxes. The
rest, presumably, Priority Care falsely adjudicated as retail
test strips to insurers under pharmacy benefit. (Doc. 90 at
37.)
The
result, Roche contends, is that Priority Care-through its
corporate entities and the eleven Defendants who manage and
direct it-bilked Roche out of tens of millions of dollars.
Some of the ill-gotten gain derives from the difference
between the prices at which Roche sells its retail versus NFR
strips, and the rest from the unwarranted rebates Roche paid
to insurance companies and PBMs; if Priority Care entities
processed the NFR strips properly (through medical benefit
rather than pharmacy benefit), then insurers and PBMs would
neither pay the pharmacies the higher, pharmacy-benefit rate
nor submit rebate requests to Roche to subsidize the price
differential.
Simply
stated, Roche alleges an indirect-benefit scheme in which it
paid rebates to the PBMs and insurers that had paid
Defendants’ fraudulent pharmacy benefit claims.
II.
Standards of Review
Rule
12(b)(2)
A Rule
12(b)(2) motion attacks the court’s jurisdiction over
the defendant’s person. In determining whether personal
jurisdiction exists, a federal court sitting in diversity
undertakes a two-step inquiry: “the exercise of
jurisdiction must (1) be appropriate under the state long-arm
statute and (2) not violate the Due Process Clause of the
Fourteenth Amendment to the United States
Constitution.” United Techs. Corp. v. Mazer,
556 F.3d 1260, 1274 (11th Cir. 2009). “The plaintiff
bears the burden of establishing personal jurisdiction over
the defendant [but] ‘need only make a prima facie
showing.’” S & Davis Intern., Inc. v. The
Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000)
(quoting Taylor v. Phelan, 912 F.2d 429, 431 (10th
Cir. 1990)). The court must accept the allegations in the
complaint as true. Id.
Rule
12(b)(6)
A Rule
12(b)(6) motion to dismiss attacks the legal sufficiency of
the complaint. Generally, the Federal Rules of Civil
Procedure require only that the complaint provide
“‘a short and plain statement of the claim’
that will give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide
the grounds of his entitlement, but Rule 8 generally does not
require “detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley, 355 U.S. at 47). It does, however,
“demand[] more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pleadings that contain nothing more than “a formulaic
recitation of the elements of a cause of action” do not
meet Rule 8 standards nor do pleadings suffice that are based
merely upon “labels or conclusions” or
“naked assertions” without supporting factual
allegations. Twombly, 550 U.S. at 555, 557.
The
Supreme Court explained that “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S.
at 678 (quoting and explaining its decision in
Twombly, 550 U.S. at 570). To be plausible on its
face, the claim must contain enough facts that “allow[]
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. Although “[t]he plausibility standard
is not akin to a ‘probability requirement,
’” the complaint must demonstrate “more
than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are merely consistent with a
defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly,
550 U.S. at 557).
The
Supreme Court has identified two working principles for the
district court to use in applying the facial plausibility
standard. The first principle is that, in evaluating motions
to dismiss, the court must assume the veracity of well-pled
factual allegations; however, the court does not have to
accept as true legal conclusions even when “couched as
[] factual allegation[s]” or “threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements.” Iqbal, 556 U.S. at
678. The second principle is that “only a complaint
that states a plausible claim for relief survives a motion to
dismiss.” Id. at 679. Thus, under prong one,
the court determines the factual allegations that are
well-pled and assumes their veracity, and then proceeds,
under prong two, to determine the claim’s plausibility
given the well-pled facts. That task is
“context-specific” and, to survive the motion,
the allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Id. If the court determines that well-pled facts,
accepted as true, do not state a claim that is plausible, the
claim must be dismissed. Id.
Shotgun
Pleading
A
“shotgun” style complaint exists when “each
count . . . adopts the allegations of all preceding counts.
Consequently, allegations of fact that may be material to a
determination of count one, but not count four, are
nonetheless made a part of count four. . . . [I]t is
virtually impossible to know which allegations of fact are
intended to support which claim(s) for relief.”
Paylor v. Hartford Fire Ins., 748 F.3d 1117, 1126
(11th Cir. 2014) (quoting Anderson v. Dist. Bd. of Trs.
of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir.
1996)).
The
purpose of Rule 8 is to provide a defendant notice of the
claim and the facts supporting it. Grimsley v. Marshalls
of MA, Inc., 284 Fed.App’x 604, 610 (11th Cir.
2008) (“The point [of Rule 8] is to give the defendant
fair notice of what the claim is and the grounds upon which
it rests.”). Rule 10 works in conjunction with Rule 8
by requiring each claim “founded on a separate
transaction or occurrence to be stated in separate counts if
needed for clarity.” Id. “These rules
work together so that [the plaintiff’s] adversary can
discern what he is claiming and frame a responsive
pleading.” Id.
III.
Discussion
Among
the twelve motions to dismiss, Defendants raise various
arguments why the court should dismiss this case. The
arguments fall into three general categories: (1) the court
lacks personal jurisdiction over some of the Individual
Defendants under Rule 12(b)(2); (2) the complaint is a
shotgun pleading contrary to Rule 8; and (3) each count fails
to state a claim upon which relief can be granted pursuant to
Rule 12(b)(6). In the interest of efficiency, the court
addresses each category of argument and breaks down the
analysis by count and by defendant as appropriate.
a.
Personal Jurisdiction
Seven
of the Individual Defendants-William H. Austin, Ashley
Tigrett, Christopher Daniel Knotts, Geneva Oswalt, Wesley
Minga, Melissa Sheffield, and Phillip Anthony Minga- contend
that the court lacks personal jurisdiction over them and must
dismiss them from the case pursuant to Rule 12(b)(2).
A
plaintiff who files a complaint in federal court against a
nonresident defendant “bears the initial burden of
alleging in the complaint sufficient facts to make out a
prima facie case of [personal] jurisdiction.”
Mazer, 556 F.3d at 1274. When evaluating a challenge
to personal jurisdiction, the court typically undertakes a
two-step inquiry: “the exercise of jurisdiction must
(1) be appropriate under the state long-arm statute and (2)
not violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.”
Id. But in Alabama, “the two inquiries merge,
because Alabama’s long-arm statute permits the exercise
of personal jurisdiction to the fullest extent
constitutionally permissible.” Sloss Indus. Corp.
v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007). So the
court considers whether the exercise of personal jurisdiction
in this case would violate the Due Process Clause.
Two
forms of personal jurisdiction exist: general and specific.
General jurisdiction exists when the defendant is at home in
the forum state-i.e., he is domiciled here. See
Daimler AG v. Bauman, 571 U.S. 117 (2014); see also
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 924 (2011) (explaining that “[f]or an
individual, the paradigm forum for the exercise of general
jurisdiction is the individual’s domicile, ” and
for a corporation, it is the state of incorporation and
principal place of business).
Roche
does not assert facts to support general jurisdiction for any
of the Individual Defendants challenging personal
jurisdiction. Instead, Roche relies on the individuals’
involvement in the alleged activities to confer specific
jurisdiction over them.
Specific
jurisdiction arises “out of a party’s activities
in the forum state that are related to the cause of action
alleged in the complaint.” Sloss Indus. Corp.,
488 F.3d at 925 (quoting McGow v. McCurry, 412 F.3d
1207, 1214 n.3 (11th Cir. 2005)). To satisfy specific
jurisdiction, the defendant’s contacts with the forum
must meet three criteria. The first is that the contacts must
be related to or have given rise to the cause of action.
“Second, the contacts must involve some act by which
the defendant purposefully avails itself of the privilege of
conducting activities within the forum. . . . Third, the
defendant’s contacts with the forum must be such that
the defendant should reasonably anticipate being haled into
court there.” U.S. S.E.C. v. Carrillo, 115
F.3d 1540, 1542 (11th Cir. 1997) (quotation and ellipses
omitted).
Roche
asserts the same two theories to support the court’s
specific personal jurisdiction over these seven individuals:
(1) the Individual Defendants participated in a conspiracy
that included overt acts within the forum state, and (2) the
Individual Defendants personally participated in torts that
occurred in Alabama.
Under
the conspiracy theory of personal jurisdiction, “a
defendant who otherwise may not be subject to personal
jurisdiction might be [brought] into court if the plaintiff
‘plead[s] with particularity the conspiracy as well as
the overt acts within the forum taken in furtherance of the
conspiracy.’” In re Blue Cross Blue Shield
Antitrust Litig., 225 F.Supp.3d 1269, 1302 (N.D. Ala.
2016) (quoting Ex parte McInnis, 820 So.2d 795,
806–07 (Ala. 2001)). But the Alabama Supreme Court
noted that the conspiratorial activity must be “aimed
at an Alabama plaintiff.” Ex parte Alamo
Title Co., 128 So.3d 700, 713 (Ala. 2013) (emphasis
added). And neither Roche Diagnostics Corporation nor Roche
Diabetes Care, Inc.-the targets of the alleged conspiracy- is
a citizen of Alabama. (Doc. 90 at 6.) So the court cannot
have personal jurisdiction over these Individual Defendants
under a conspiracy theory of jurisdiction because neither
Plaintiff is an Alabama plaintiff.
Alternatively,
Roche asserts that this court has personal jurisdiction over
the Individual Defendants under the tortious conduct theory.
Under Alabama law, “[a] corporate agent who personally
participates, albeit in his or her capacity as such agent, in
a tort is personally liable for the tort.” Sieber
v. Campbell, 810 So.2d 641, 645 (Ala. 2001). The
corporate agent who personally participates in the tort is
subject to personal jurisdiction in the forum state where
that tort is litigated; however, the personal jurisdiction of
a corporation does not automatically give the state
personal jurisdiction over the corporation’s officers
or agents. See Id . (“[C]orporate-agent status
does not insulate the agent from the personal jurisdiction of
a state court for the litigation of those torts, or any other
claims pendent to that lawsuit”); Candy H. v.
Redemption Ranch, Inc., 563 F.Supp. 505, 513 (M.D. Ala.
1983) (“[P]ersonal jurisdiction over corporate officers
and employees in their individual capacity may not be
predicated merely upon personal jurisdiction over the
corporation itself; rather, a court must look to the
individual and personal contacts, if any, of the officers and
employees with the forum state.”).
In this
case, portions of the alleged insurance fraud scheme took
place in Alabama. Six of the brick-and-mortar pharmacies
purchased by PHC are in Alabama. (Doc. 90 at 20.) And those
pharmacies allegedly are filling the prescriptions and
communicating with the fulfillment center in Amory,
Mississippi to prepare records for adjudication.
(Id. at 21.) Without these transmissions of the
prescriptions for the test strips back to Mississippi, PHC
could not submit adjudication claims to the insurance
companies and PBMs that in turn seek rebates from Roche. So
the very heart of these insurance claims originates from the
pharmacies in Alabama. (Id. at 23.) These actions
were not, as the Individual Defendants suggest, “mere
untargeted negligence.” See Calder v. Jones,
465 U.S. 783, 789 (1984). PHC sought out Alabama pharmacies
to purchase and incorporate into its tangled web of
deception. The newly acquired Alabama pharmacies then
submitted allegedly fraudulent prescriptions for adjudication
via PHC’s filling center in Amory.
But the
Individual Defendants contend that the tortious conduct does
not give rise to their personal jurisdiction in Alabama
because the harm was not directed at the State of Alabama or
its residents and because the “operational nexus”
of the allegedly illegal activity was in Mississippi. (Doc.
106 at 11.) The Individual Defendants are correct.
Just as
with the conspiracy theory of personal jurisdiction, tortious
conduct must intentionally harm the forum state or its
residents before personal jurisdiction attaches. The Eleventh
Circuit notes that the Calder effects test of
personal jurisdiction by tortious conduct requires “the
commission of an intentional tort, expressly aimed at a
specific individual in the forum whose effects were
suffered in the forum.” Licciardello v.
Lovelady, 544 F.3d 1280, 1288 (11th Cir. 2008) (emphasis
added). Roche was not in Alabama, and the effects were not
suffered in Alabama. The effects were suffered in
Indiana-where Roche Diagnostics Corporation is incorporated
and has its principal place of business, and where Roche
Diabetes Care, Inc. has its ...