Sarah Cordle v. Enovis Corp.

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 3, 2025
• Docket: 24-5958
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0269n.06

No. 24-5958

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

SARAH CORDLE, by and through her next ) ) friend Dorothy Cordle, ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ENOVIS CORPORATION; COLFAX ) KENTUCKY CORPORATION; DJO GLOBAL, INC.; DJO, ) LLC, ) OPINION Defendants-Appellees. ) )

Before: THAPAR, READLER, and BLOOMEKATZ, Circuit Judges.

BLOOMEKATZ, Circuit Judge. Sarah Cordle alleges that she suffered severe injuries

when her prescribed knee brace slipped and malfunctioned while she was playing softball.

Through her mother, she sued various companies she claims were involved in designing,

manufacturing, and distributing this purportedly defective knee brace. The district court concluded

that Cordle, even after filing an amended complaint, failed to demonstrate that the court had

personal jurisdiction over one of the defendants and failed to plausibly allege that each defendant

took part in causing her injury. So it dismissed her case against all defendants. In this appeal,

Cordle challenges the personal jurisdiction ruling and argues that the district court should have

allowed her to amend her complaint a second time. We affirm. No. 24-5958, Cordle v. Enovis Corp., et al.

BACKGROUND

In her original complaint, Cordle sued Enovis Corporation and DJO Global, Inc., in

Kentucky state court for defective “design, assembly, manner of manufacturing, and distribution”

of a knee brace (called the “Donjoy”) that her doctor had prescribed.1 Compl., R. 1-1, PageID 16.

She says the defendants represented that the brace could provide support during “normal daily

activities including competitive athletic events,” but that the brace allegedly “broke, slipped, bent

and mal-functioned” despite her wearing it as intended. Id. at PageID 15–16. The brace’s

malfunction caused knee injuries that required multiple surgeries, physical therapy, medication,

and follow-up treatment.

DJO Global removed the case to federal court. It then moved to dismiss the case for lack

of personal jurisdiction and failure to state a claim upon which relief can be granted. See Fed. R.

Civ. P. 12(b)(2), (b)(6). Before the district court ruled on the motion, Cordle—with a magistrate

judge’s permission—amended her complaint. The amended complaint differed from the original

in a few ways; mainly, it added DJO, LLC as a defendant (not to be confused with existing

defendant DJO Global), described how Cordle’s doctor had prescribed this particular brace, and

stated that the defendants’ representations induced her to take part in physical activities she

otherwise would have avoided.

DJO Global moved to dismiss the amended complaint on the same grounds as before. The

district court concluded that it had personal jurisdiction over DJO Global. But, after examining

Kentucky precedent interpreting the state’s product liability statute, the district court determined

that Cordle had not stated a claim under the statute because she had not plausibly alleged “how the

1 Cordle also sued Colfax Corporation. But because the parties agree that Colfax Corporation changed its name to Enovis Corporation, and the two are in fact the same entity, we refer only to Enovis in this opinion.

-2- No. 24-5958, Cordle v. Enovis Corp., et al.

brace was defective.” Order, R. 27, PageID 289–90. It emphasized that Cordle had been made

aware of the “potential for dismissal on this basis” through DJO Global’s first motion, but that she

failed to address it when amending her complaint. Id.

At the same time the district court dismissed the claims against DJO Global, it ordered

Cordle to serve the amended complaint on Enovis and DJO, LLC, the two remaining defendants,

who apparently had not yet been served. Both Enovis and DJO, LLC subsequently moved to

dismiss the amended complaint for insufficient service of process, failure to comply with the

service order, and failure to state a claim upon which relief could be granted. Enovis also moved

to dismiss for lack of personal jurisdiction.

The district court granted their motions to dismiss. Unlike with DJO Global, the district

court concluded that it did not have personal jurisdiction over Enovis. It also determined that

Cordle failed to state a claim against either Enovis or DJO, LLC because, as before, she did not

sufficiently allege how the brace was defective. Moreover, Cordle did not plausibly allege what

role (if any) each defendant played in designing, manufacturing, or distributing the brace or

otherwise causing Cordle’s injury.

In the same order, the district court denied Cordle’s motion to amend her complaint a

second time. It concluded that Cordle’s proposed second amended complaint still failed to

sufficiently allege causation, a required element of her claims. While the proposed complaint

seemed to provide additional allegations as to how the brace was defective, like earlier iterations

of the complaint, the proposed second amended complaint broadly attributed the defects in design,

manufacturing, and distribution to “the Defendants as a group.” Order, R. 71, PageID 578. It did

not allege any specific action or inaction by any particular defendant that contributed to Cordle’s

-3- No. 24-5958, Cordle v. Enovis Corp., et al.

injury. Because the district court determined that this shortcoming would doom her claim under

Kentucky caselaw, it denied leave to amend as futile.

Cordle timely appealed.

ANALYSIS

Cordle appeals the district court’s decision on two grounds. First, she argues that the court

had personal jurisdiction over Enovis. Second, she argues that the district court should have

granted her leave to file a second amended complaint. We discuss each issue in turn.

I. Personal Jurisdiction Over Enovis

We review de novo the district court’s determination that it lacked personal jurisdiction

over Enovis. Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir. 2007).

Where, as here, the court is sitting in diversity, we look to the law of the forum state to determine

whether personal jurisdiction is proper. Blessing v. Chandrasekhar, 988 F.3d 889, 901 (6th Cir.

2021). Under Kentucky law, determining whether a court can exercise jurisdiction over a non-

resident defendant is a “two-step process.” Id. (citing Caesars Riverboat Casino, LLC v. Beach,

336 S.W.3d 51, 57 (Ky. 2011)). “First, the cause of action must arise from the type of conduct or

activity enumerated in Kentucky’s longarm statute.” Id. Relevant here, the longarm statute allows

Kentucky courts to exercise personal jurisdiction over a party “bas[ed]” on its “transacting any

business” in the state. Ky. Rev. Stat. § 454.210(2)(a). If the Kentucky longarm statute is satisfied,

the court must then determine whether the exercise of personal jurisdiction is consistent with

federal due process. Blessing, 988 F.3d at 901.

As an initial matter, Cordle did little to make this showing. Cordle did not directly address

either prong of the two-step framework, making no reference to either the Kentucky longarm

statute or federal due process. Cordle merely noted that Enovis was registered to do business in

-4- No. 24-5958, Cordle v. Enovis Corp., et al.

Kentucky at the time the alleged injury occurred. The district court called this response

“insufficient,” explaining that “[i]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.” Order, R. 71, PageID 581 (quoting

McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997)). It further explained that, under existing

caselaw, Enovis’s registration to do business in Kentucky and its appointment of a registered agent

in the state did not suffice to satisfy Kentucky’s longarm statute. We agree. Evidence of

registration alone does not demonstrate that Cordle’s claim “arises from” Enovis’s transacting

business in the state, as required by the statute. See Caesars, 336 S.W.3d at 55. While Cordle

provides new facts on appeal regarding the transactions Enovis allegedly conducted in the state,

we will not evaluate them in the first instance. See United States v. Richardson, 385 F.3d 625, 631

(6th Cir. 2004).

Cordle responds that she did not need to provide any further explanation before the district

court because Enovis is the parent company of, and acted in concert with, DJO Global, which the

district court had already concluded it had jurisdiction over. So, she reasons, the “same factors,

rationale and findings” underlying the district court’s exercise of jurisdiction over DJO Global

“should govern as to Enovis,” and “[a]ny further comment” would have been “duplicative.”

Appellant Br. at 27–28. Not so.

The district court’s earlier ruling does not absolve Cordle of the responsibility to develop

the argument for personal jurisdiction over Enovis. To start, Cordle never alleged in her complaint

that Enovis was DJO Global’s parent company. And while she mentioned it in her briefing before

the district court, it was not to show personal jurisdiction over Enovis. Regardless, for personal

jurisdiction, Cordle needs to allege more than Enovis’s status as DJO Global’s parent company.

See Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1273–74 (6th Cir. 1998). A plaintiff must

-5- No. 24-5958, Cordle v. Enovis Corp., et al.

provide “sufficient evidence . . . to conclude that [the parent company] is being brought into court

for something that it has done, not for something that [its subsidiary] has done.” Id. at 1274. Cordle,

however, provides only broad, unsupported assertions about the defendants’ collective actions to

try to demonstrate Enovis’s role in the design, manufacturing, and distribution of the knee brace.

See infra Part II. Without more, she has not provided the factual basis necessary to support personal

jurisdiction over Enovis.

Cordle also argues that the district court should have conducted an evidentiary hearing to

determine whether it had jurisdiction. We review the district court’s decision not to hold such a

hearing for abuse of discretion. See Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991).

Such a hearing is helpful when, for example, “the written submissions raise disputed issues of fact

or seem to require determinations of credibility.” Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d

1212, 1214 (6th Cir. 1989). Cordle’s threadbare jurisdictional argument did not create such a

dispute, so we cannot say that the district court abused its discretion in declining to hold a hearing

before dismissing the claims against Enovis for a lack of personal jurisdiction.

II. Leave to Amend

Next, Cordle argues that the district court should have allowed her to amend her

complaint—for a second time—to avoid dismissal. Under Federal Rule of Civil Procedure 15,

courts should “freely give” leave to amend a complaint “when justice so requires.” Fed. R. Civ. P.

15(a)(2). However, the district court did not need to grant Cordle leave to amend if her proposed

changes would have been futile; that is, if even after her proposed changes, the complaint “still

could not withstand a Rule 12(b)(6) motion to dismiss.” Greer v. Strange Honey Farm, LLC, 114

F.4th 605, 617 (6th Cir. 2024) (internal quotation omitted); see also Riverview Health Inst. LLC v.

-6- No. 24-5958, Cordle v. Enovis Corp., et al.

Med. Mut. of Ohio, 601 F.3d 505, 520 (6th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182

(1962)).

We review de novo the district court’s determination that Cordle’s proposed amendments

would not have saved her complaint from dismissal. Com. Money Ctr., Inc. v. Ill. Union Ins. Co.,

508 F.3d 327, 346 (6th Cir. 2007). Because we are sitting in diversity, Kentucky law governs the

substance of Cordle’s claims. See Greer, 114 F.4th at 613. But because the case is in federal court,

federal pleading standards apply. Id. Therefore, to survive a motion to dismiss, Cordle’s proposed

second amended complaint “must contain sufficient factual matter, accepted as true” to state a

claim under Kentucky product liability law “that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citation omitted). If it fails to do so, the proposed amendments would be

futile. Greer, 114 F.4th at 617.

Even with her changes, Cordle’s proposed second amended complaint fails to adequately

plead causation. To state a claim under the Kentucky product liability statute, Cordle must

plausibly allege that “the defendant’s conduct was a substantial factor in bringing about [her]

harm.” King v. Ford Motor Co., 209 F.3d 886, 893 (6th Cir. 2000); see also Stiens v. Bausch &

Lomb Inc., 626 S.W.3d 191, 199 (Ky. Ct. App. 2020). However, Cordle’s proposed second

amended complaint contains only vague assertions that all defendants caused her injury through

defective design, manufacturing, and distribution of the knee brace. She provides no further

allegations connecting each defendant to the defective product. The proposed complaint hardly

tells us who the defendants are or what type of business they’re engaged in, alleging only that they

are all “foreign entities doing business within the Commonwealth of Kentucky.” Proposed Second

Am. Compl., R. 36, PageID 305. Put differently, Cordle’s proposed complaint at most alleges that

she suffered an injury from a defective knee brace. But it does not support a “reasonable inference

-7- No. 24-5958, Cordle v. Enovis Corp., et al.

that [each] defendant is liable for the” alleged defect. Iqbal, 556 U.S. at 678 (emphasis added); see

also Red Hed Oil, Inc. v. H.T. Hackney Co., 292 F. Supp. 3d 764, 775 (E.D. Ky. 2017).

Cordle again counters that the defendants are essentially “one organization working in

concert.” Appellant Br. at 14. She points to parent-subsidiary relationships, and states that the

defendants “were likely all involved in the manufacture, distribution and sale of the defective brace

to [Cordle].” Id. at 15. To be sure, Kentucky law recognizes a “concert of action” theory for

product liability claims, which allows a plaintiff to hold multiple defendants jointly and severally

liable for an injury. Farmer v. City of Newport, 748 S.W.2d 162, 164 (Ky. Ct. App. 1988). But as

a prerequisite to invoking this theory, a plaintiff must “establish that the defendants acted by

cooperative or concerted activities.” Hogan v. Goodrich Corp., No. Civ.A. 05-159-C, 2006 WL

149011, at *5 (W.D. Ky. Jan. 17, 2006) (quoting Dawson v. Bristol Lab’ys, 658 F. Supp. 1036,

1040 (W.D. Ky. 1987)). Cordle’s proposed second amended complaint is utterly devoid of factual

allegations showing the defendants worked together. And, again, regardless of how much weight

we should give parent-subsidiary relationships in discerning concert of action—a question we do

not consider here—Cordle raises this relationship only in her briefings, and not in her proposed

complaint. While “we read the complaint generously, we do not presume facts not alleged therein.”

Schwamberger v. Marion Cnty. Bd. of Elections, 988 F.3d 851, 856 (6th Cir. 2021). We, of course,

understand that plaintiffs cannot always know at the outset the exact breakdown of collective

actors’ responsibilities. See Dawson, 658 F. Supp. at 1039–40. But Cordle must still plead a

plausible case that the defendants acted collectively to cause her injury. And she did not even

include the basic information about the companies that she now asks us to consider in her proposed

second amended complaint. The district court accordingly did not err in determining the proposed

amendments would be futile.

-8- No. 24-5958, Cordle v. Enovis Corp., et al.

Cordle further argues on appeal that, even if she was not allowed to amend her complaint,

the district court should have at least given her the opportunity to provide a more definite statement

under Federal Rule of Civil Procedure 12(e) before dismissing her case. Rule 12(e) provides that

“[a] party may move for a more definite statement of a pleading to which a responsive pleading is

allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.”

Fed. R. Civ. P. 12(e). The defendants did not make such a motion. And DJO Global’s motion to

dismiss put Cordle on notice of her complaint’s potential deficiencies at the outset of this litigation.

Yet, after three draft complaints—the original, amended, and proposed second amended

complaints—Cordle still failed to plausibly plead causation. The district court was not obligated

to provide her yet another bite at the apple.

CONCLUSION

For these reasons, we affirm.

-9-