Opinion
CASE NO. 01-944 CIV-Middlebrooks
01-03-2002
JERRY JACOBS, individually and, on behalf of all others similarly situated, Plaintiff, v. OSMOSE, INC., HICKSON CORPORATION, USA, HICKSON CORP., HICKSON INTERNATIONAL , PLC, ARCH CHEMICALS, INC., HOME DEPOT, U.S.A., INC., LOWE'S HOME CENTERS, INC., ROBBINS MANUFACTURING CO., HOOVER TREATED WOOD PRODUCTS, INC., FOLLEN WOOD PRESERVING CO., INC., WOOD TREATERS, INC., and XYZ CORPORATIONS 1 through 25, Defendants.
ARONOVITZ TRIAL LAWYERS Tod Aronovitz, Esq. Florida Bar No. 186430 Matthew P. Slingbaum, Esq. Florida Bar No. 0195979 150 West Flagler Street Suite 2700 - Museum Tower Miami, Florida 33130 Telephone 305-372-2772 Facsimile 305-375-0243 ta@aronovitzlaw.com KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C. Gary S. Graifman, Esq. Robert D. Wilkins, Esq. 747 Chestnut Ridge Road Chestnut Ridge, New York 10977 Telephone 845-356-2570 Facsimile 845-356-4335 McCREA & McCREA David McCrea, Esq. 119 South Walnut Street P.O. Box 1310 Bloomington, Indiana 47402-1310 Telephone 812-336-4840 Facsimile 812-336-5307 BUCKLAND & SCHUMM Jerry Schumm, Esq. 120 Prospect Street Bellingham, Washington 98225 Telephone 360-671-1881 Facsimile 360-733-3538 Attorneys for Plaintiff
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT , HICKSON INTERNAIONAL PLC's, MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
PRELIMINARY STATEMENT
Plaintiff, JERRY JACOBS, individually and, on behalf of all others similarly situated ("Plaintiff"), submits this Memorandum of Law in Opposition to the Motion of Defendant HICKSON INTERNATIONAL PLC's (hereinafter referred to as "Defendant" or "HICKSON"), Motion to Dismiss Plaintiff's Class Action Complaint For Lack of Personal Jurisdiction.
The Class Action Complaint is referred to herein as the "Complaint" or "C." All defendants, including HICKSON, named in the Complaint have designed, advertised, publicized, manufactured marketed, distributed and/or sold the aforementioned treated wood products in a manner consistent with negligent, reckless and/or intentional disregard of the harmful effects of the chemical(s) used in the treatment process. It should be noted that Defendant, Roy O. Martin, L.P. was voluntary dismissed by the Plaintiff and was not dismissed by this Court due to lack of personal jurisdiction as alleged by HICKSON.
The Complaint herein alleges, inter alia, claims for strict liability for failure to warn and for the sale of a dangerous product; medical monitoring for those who have been exposed to wood treated with a combination of chromium, copper & arsenic ("CCA-Treated Wood" or "Treated Wood"); negligence for failing to properly warn members of the class of the dangers of CCA-Treated Wood; fraud; breach of warranty; and violation of the Florida Consumer Protection Statutes, including but not limited to F.S. Sec. 501.204. In part, the suit alleges that in 1978, the manufacturing Defendants (i.e., Osmose, Inc. ("Osmose"), Hickson Corporation, USA, Hickson Corporation and Hickson International, PLC (collectively referred to as "HICKSON"), and the wood-treating Defendants successfully thwarted an administrative proceeding commenced by the Environmental Protection Agency ("EPA") by expressly agreeing to give end users of the CCA-treated products written consumer information (e.g., Consumer Information Sheets) which contained warnings and highlighted the true dangers of CCA-Treated Wood. This program, however, was a sham and these materials were consistently never given by Defendants, including HICKSON, to end-users of the products.
Defendants, including HICKSON, have embarked on a campaign of spreading misinformation and half-truths through the chain of dissemination (starting with the manufacturing defendants, Osmose and HICKSON, down to the retail resellers, Lowe's and Home Depot), which purport to attest to the safety of CCA-Treated Wood by distribution of such statements as, among others, that (i) "CCA pressure treated wood is harmless to people, plants, pets and the environment;" that "its proper use is almost identical to that of untreated wood;" (ii) CCA "represents a harmless conversion of some chemicals that might otherwise pose environmental problems;" (iii) CCA, "once fixed in the wood cells, is highly leach resistant" and "will not concentrate in plants growing close to Treated Wood;" and (iv) the ingestion of CCA is no more dangerous than ordinary table salt.
SUMMARY OF ARGUMENT
This Court may exercise its long-arm jurisdiction over Defendant, HICKSON, because it clearly has established sufficient minimum contacts with the forum state. HICKSON had actual knowledge that it actively marketed and solicited thousands of Florida residents as customers, through the mail, through the Internet and in person by and through the treaters and retailers for which Defendant produces CCA chemicals and CCA treated wood. In addition, Defendant has continuous and systematic contacts with thousands of CCA treated wood consumers in Florida, and throughout the United States, by telephone, through the internet, by mail, and in person by providing literature regarding CCA treated wood, through the wood treaters and retailers for which they manufacture CCA chemicals and CCA treated wood. Defendant continues to benefit from the privilege of conducting business activities in the State of Florida without regard for its residents and the rights and benefits conferred upon them by their home State.
HICKSON's websites located at www.hickson.co.uk/ and www.wolmanizedwood.com details the multiple varieties of CCA pressure treated wood available for purchase from its website, and information detailing financial and corporate information regarding HICKSON.
Moreover, traditional notions of fair play and substantial justice require exercise of jurisdiction over HICKSON. The factors this Court should consider in balancing the burdens on the respective parties and the interests of the State of Florida regarding the adjudication of the instant lawsuit clearly dictate the exercise of this Court's jurisdiction over the Defendant.
Accordingly, Defendant, HICKSON's, Motion to Dismiss for Lack of Personal Jurisdiction should be denied with prejudice.
LEGAL STANDARD ON A MOTION TO DISMISS
Fed R. Civ. P. 8(f) provides that "all pleadings shall be so construed so as to do substantial justice". The legal standard on a motion to dismiss is undisputed. It is only appropriate to dismiss an action where "it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). All allegations of material fact in a complaint must be accepted as true and construed in the light most favorable to the nonmoving party. Hishon v. King & Spalding, 467 U.S. 69 (1984); Bryant v. Avado Brands, 187 F.3d 1271, 1273 n.1 (11th Cir. 1999); Silicon Graphics I, 970 F. Supp. at 751 (an action must be sustained unless it "appears beyond doubt that [the plaintiffs] can prove no set of facts in support of [their] claims which would entitle [them] to relief.").
The Plaintiff's allegations are taken as true. Conley v. Gibson, 355 U.S. 41, 46-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The allegations must be liberally construed as a whole and in the light most favorable to the plaintiff, resolving any ambiguities in plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sherleigh Associates, LLC v. Windmere-Durable Holdings, Inc., 2000 U.S. Dist LEXIS 9771 (S.D. Fla. June 8, 2000); United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Detail regarding each wrongful act is not required. As the Supreme Court noted in NOW v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 803, 127 L.Ed.2d 99 (1994):
"At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992) (citations omitted).
ARGUMENT
I. THERE IS AN AGENCY RELATIONSHIP BETWEEN HICKSON INTERNATIONAL , PLC. AND HICKSON USA.
HICKSON should not be able to hide behind its own corporate veil by arguing that it's wholly owned subsidiary may create and sell CCA chemicals and CCA treated wood, but it should not be held responsible for this activity. Upon information and belief, Hickson USA, is simply an agent for its parent corporation, HICKSON. It is clear that the parent corporation, HICKSON, controls its subsidiary, Hickson USA. HICKSON exercises control of the subsidiary, Hickson USA, to the extent that the subsidiary manifests no separate corporate interests of its own and functions solely to achieve the purposes of HICKSON.
Upon information and belief, the subsidiary, Hickson USA, receives financing from the parent corporation, HICKSON, for the production of CCA chemicals and CCA treated wood. These chemicals are developed by HICKSON and Hickson USA; they are then shipped and sold to the wood treaters and retailers, and eventually purchased by consumers. Additionally, HICKSON sells CCA treated wood under the name of Wolmanized ® pressure-treated wood to retailers and consumers in Florida and throughout the world. HICKSON exercises financial control over Hickson USA and is integral to the production of the chemicals that create CCA treated wood and the Wolmanized ® pressure-treated wood product. As the parent corporation of Hickson USA, HICKSON is liable for the acts of its subsidiary, Hickson USA and is subject to the jurisdiction of this Court.
II. DEFENDANT'S CONDUCT IN CONNECTION WITH ITS MANUFACTURING , SOLICITING, AND SUPPLYING CCA CHEMICALS AND CCA TREATED WOOD TO THE WOOD TREATERS, RETAILERS AND CONSUMERS MAKES IT SUBJECT TO GENERAL JURISDICTION IN FLORIDA
In order to determine whether this Court has personal jurisdiction over the nonresident Defendant in this case, the Court must undertake a two-part analysis. Sculptchair, Inc. v. Century Arts, Ltd., 94 F. 3d 623, 626 (11th Cir. 1996). "First, [this Court] must determine whether the Florida long-arm statute provides a basis for personal jurisdiction. If so, then [this Court] must determine whether sufficient minimum contacts exist between the [D]efendant and the forum state so as to satisfy 'traditional notions of fair play and substantial justice' under the Due Process Clause of the Fourteenth Amendment." See id., (citations omitted). Applying this two-part analysis to HICKSON, demonstrates that this Court may exercise general personal jurisdiction over this Defendant because it has "continuous and systematic general business contacts" with the State of Florida. See generally, Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984).
Defendant has misapplied the law regarding § 48.193(2), the very section of the Florida long-arm statute that Plaintiff alleges is satisfied by conduct on the part of this Defendant. Florida Statutes § 48.193(2) provides:
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
Defendant concedes that it manufactures and supplies the chemicals that create CCA treated wood. Notwithstanding Defendant's characterization to the contrary, the manufacturing and supplying of the CCA chemicals in Florida is not fortuitous or isolated. Further, HICKSON is the parent company that manufactures and distributes Wolmanized ® pressure-treated wood, the largest brand of CCA treated wood in the world. It is upon information and belief that thousands of Florida consumers have purchased the Wolmanized ® pressure-treated wood product for use in Florida. Defendant, HICKSON, deliberately, continuously, and systematically solicits Florida residents on its own website and through the wood treaters and retailers for whom it manufactures and supplies CCA chemicals and CCA treated wood. Further, Defendant has continuous and systematic contacts with Florida wood treaters, retailers and consumers through the mail, and by telephone.
In Travel Opportunities of Ft. Lauderdale, Inc. v. Walter Karl List Management, Inc., 726 So. 2d 313, 314 (Fla. 4th DCA 1998), the court held that where the defendant took phone orders from more than 5,000 persons who provided a Florida delivery address, sold more than 5,000 items with a delivery destination in Florida, and had net revenues of almost $2 million, the conduct amounted to "substantial and not isolated activity within this state," within the meaning of section 48.193(2), Florida Statutes, such that [defendant] is subject to general jurisdiction in Florida. See also, Pafco General Ins. Co. v. Wah-Wai Furniture Co., 701 So. 2d 902 (Fla. 3rd DCA 1997) (finding jurisdiction over Hong Kong furniture manufacturer who, over the course of several years, sold 50,000 office chairs a year for $1,000,000 to a Miami distributor).
In this case, the Plaintiff has not been permitted to obtain any discovery disclosing the number of Florida wood treaters and retailers to whom Defendant, HICKSON, has supplied CCA chemicals and CCA treated wood and/or the number of Florida consumers who have purchased or come in contact with the CCA chemicals and CCA treated wood that was manufactured by HICKSON. Plaintiff has also yet to be provided with any responses and/or documentation explaining the relationship between HICKSON and the other seven Defendants who manufacture, treat and/or sell CCA pressure treated wood. In addition, Plaintiff has not been provided with information and/or documentation regarding the amount of revenue the Defendant generates annually from Florida wood treaters, retailers and consumers who purchase CCA treated wood. Despite the lack of discovery responses provided to date, Plaintiff is confident that HICKSON has supplied thousands of pieces of CCA treated wood to Florida businesses and consumers. Plaintiff is also confident that HICKSON generates over $10,000,000 annually as a result of the CCA chemicals and CCA treated wood they manufacture and supply into Florida. Defendant's conduct in the State of Florida is not isolated, but rather continuous and systematic and satisfies Florida's long-arm statute.
Defendant has only cited one case to support its argument that Florida Statutes § 48.193(2) does not apply. Moreover, this case is distinguishable because is does not involve the kind of continuous activity and substantial revenue involved here. Accordingly, where the Defendant, HICKSON, has, for at least the past several years, continuous and systematic contacts with Florida businesses and consumers, entered into contracts with Florida businesses and consumers through the internet, continuous contact with Florida businesses and consumers through the mail and the telephone, and have generated millions of dollars of revenue from the CCA chemicals it supplies to Florida businesses and consumers, the requirements of Florida Statutes § 48.193(2) have been satisfied so that Defendant is subject to this Court's general jurisdiction.
III. DEFENDANT'S CONDUCT IN CONNECTION WITH ITS MANUFACTURING , SOLICITING, ANDSUPPLYING CCA CHEMICALS TO THE WOOD TREATERS, RETAILERS AND CONSUMERS MAKES IT SUBJECT TO SPECIFIC JURISDICTION IN FLORIDA
Defendant has argued that they are not subject to the Florida long-arm statute under § 48.193(1), since it has detailed in an affidavit that it does not design, manufacture, distribute, advertise or sell CCA treated wood. The Florida long-arm statute details that a nonresident defendant is subject to suit in Florida if the claims asserted against the defendant arise from a number of particular acts, including:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
(b) Committing a tortious act within this state.
...
(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside the state, if, at or about the time of the injury, either:
1. The defendant was engaged in solicitation or service activities within this state: or
2. Products, materials, or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
Fla. Stat. § 48.193(1)(a)(b)(f).
Through its agent Hickson USA, HICKSON operates and engages in extensive advertising and solicitation of CCA chemicals and CCA treated wood in Florida. This activity is not isolated, and HICKSON is subject to Florida's long arm statute under Fla. Stat. § 48.193(1)(a). Further, the named Plaintiff and thousands of consumers throughout Florida have suffered significant injuries as a result of the CCA chemicals manufactured by Hickson and distributed into Florida. Accordingly, HICKSON is subject to Florida's long arm statute under Fla. Stat. § 48.193(1)(b).
It is readily apparent that HICKSON does manufacture, distribute, advertise and sell the chemicals that create and are infused into pressure treated wood and the Wolmanized ® pressure-treated wood product. Without the chemicals developed and manufactured by HICKSON, CCA treated wood would not exist. Further, HICKSON sells CCA treated wood under the product name Wolmanized ® pressure-treated wood to millions of consumers in Florida and throughout the world. For HICKSON to argue that it does not design, manufacture, distribute, advertise or sell CCA treated wood is false and disingenuous. HICKSON manufactures and processes the chemicals including arsenic and chromium VI that creates CCA treated wood. These chemicals have caused serious and debilitating injuries to thousands of consumers throughout Florida and the world. HICKSON has extensively marketed its product via the Internet, mail and telephone to wood treaters, retailers and consumers. HICKSON has caused injuries to person and property in Florida arising out of the above acts and omissions committed outside of this state, accordingly, HICKSON is subject to this Courts jurisdiction under Florida's long arm statute Fla. Stat. § 48.193(1)(f).
IV. DEFENDANT'S CONDUCT , VIEWED COLLECTIVELY, SATISFIES CONSTITUTIONAL DUE PROCESS CONSIDERATIONS
A finding of jurisdiction over HICKSON does not offend constitutional due process considerations. "Jurisdiction is proper where a defendant has purposefully availed itself of the "privilege of conducting activities within the forum State." Travel Opportunities, 726 So. 2d at 315, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). "In the electronic age, it is not necessary for a defendant to have a physical presence in a state for jurisdiction to attach. As the Supreme Court wrote in Burger King:
Jurisdiction ... may not be avoided merely because the defendant did not physically enter the forum State. Although territorial presence frequently will enhance a potential defendant's affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modem commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there."Travel Opportunities, 726 So. 2d at 315. See also, Quill Corp. v. North Dakota, 504 U.S. 298 (1992); and Electro Engineering Products Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977) (advertising, marketing, and distributing a product for use by Florida citizens can supply sufficient minimum contacts with Florida to satisfy the due process clause). In Quill, the United States Supreme Court found that the defendant mail order house, which was "virtually unconnected" with North Dakota, had purposefully availed itself of the economic market in North Dakota and was, therefore, subject to personal jurisdiction there even if it has no physical presence in that state. 504 U.S. at 307. The Supreme Court further stated that "in modern commercial life it matters little that such solicitation is accomplished by a deluge of catalogs rather than a phalanx of drummers: The requirements of due process are met irrespective of a corporation's lack of physical presence..." Id. at 308.
Since Burger King, Quill, and Electro Engineering were decided the Internet has become a part of everyday life and, as this Court is aware, there are companies that conduct business exclusively through the Internet. As a result, courts are considering a defendant's Internet activity in determining whether to exercise personal jurisdiction. Plaintiff submits that Defendant's Internet activities are more akin to the defendant in Bath & Body Works, Inc. v. Wal-Mart Stores, Inc., 2000 WL 1810478 (S.D. Oh. 2000). See also, Sports Authority Michigan, Inc. v. Justballs, Inc., 97 F. Supp. 2d 806 (E.D. Mich. 2000). In Bath & Body Works, the court found that the defendant should have reasonably anticipated being haled into the court in Ohio and that it had purposefully availed itself of the privilege of acting in Ohio or causing a consequence in Ohio because its website displayed a link for ordering its products on-line at another website. 2000 WL 1810478 at *8. In considering whether Defendant's Internet activity triggered the court's exercise of personal jurisdiction, the Bath & Body Works court followed the analysis in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) that divided cases into three categories. The conduct on the part of HICKSON fits into the first category finding personal jurisdiction proper where the Defendant enters into contracts with residents of other states which "involve the knowing and repeated transmission of computer files" over the Internet.
Similar to the defendant in Bath & Body Works, HICKSON conducts business in Florida through the websites of the treaters and retailers for which it manufactures and supplies CCA chemicals and CCA treated wood. HICKSON throughout its motion and the declaration of Jeremy Maiden have stated that it does not specifically market or sell the actual completed CCA treated wood product and should not be subject to this Courts jurisdiction. HICKSON is the largest chemical manufacturer in the world of the chemicals that make up CCA treated wood. Additionally, HICKSON is the manufacturer of Wolmanized ® pressure-treated wood, the largest producer of CCA pressure treated wood in the world. HICKSON's own website and literature details its extensive involvement in producing the chemicals that create CCA treated wood. Moreover, HICKSON website at www.hickson.co.uk./, directs you to visit its website at www.wolmanizedwood.com. This website provides specific links regarding the manufacturing and chemical infusion process of CCA chemicals into treated wood. The site directs the consumers to links titled Decks and Residential Projects which details specific building and construction plans for consumers to build a residential deck using Wolmanized ® pressure-treated wood. Further, HICKSON's website provides links to over fifty (50) companies which consumers can purchase HICKSON's CCA treated wood products.
Throughout its website, HICKSON details the process of treating and preparing CCA treated wood. Contrary to Defendant's unsubstantiated assertions that Plaintiff does not assert any allegations that Defendant caused any injury or breached any contract in Florida, the Complaint specifically explains that HICKSON is the manufacturer of Wolmanized ® pressure-treated wood and the manufacturer of the chemicals Copper, Chromium and Arsenic which are infused to create CCA treated wood. Treated wood is then delivered to Florida to be used by Florida consumers. Defendant also accepts payments from Florida residents made in person to the retailers which HICKSON supplies the CCA chemicals and Wolmanized ® pressure-treated wood. Defendant HICKSON keeps in continuous and systematic contact with Florida treaters, retailers and consumers by mail and the Internet as the entity that manufactures the chemicals to create CCA treated wood. Defendant HICKSON should not be permitted to hide behind its agent, the wood treaters and retailers on whose behalf it markets CCA treated wood to new and existing customers.
HICKSON's website touts the safety of CCA treated wood, thereby further misleading and misinforming businesses and consumers which read its advertisements and purchases chemicals to create CCA-wood from treaters and retailers.
V. THIS COURT'S EXERCISE OF JURISDICTION OVER DEFENDANT IS REASONABLE
As is more fully discussed above, the conduct on the part of HICKSON satisfies the first two elements of the test for personal jurisdiction and, as such, there is an inference that the exercise of jurisdiction is reasonable. See Justballs, 97 F. Supp. 2d at 815. When considering whether it would be reasonable or "comport with traditional notions of fair play and substantial justice" to exercise personal jurisdiction over Defendant, this Court must consider several factors. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987). The factors to be considered are "the burden on the defendant, the interest of the forum state, the plaintiff's interest in obtaining relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies." Id. at 113.
Florida has a strong interest in policing the Defendant's violations of both federal and state laws related to its treating and supplying a defective product and in protecting its residents from fraudulent and deceptive trade practices. Any negligible burden on Defendant in litigating this matter in Florida does not outweigh the interests of the named Plaintiff and the State of Florida's interest. The named Plaintiff and thousands of Florida consumers have CCA treated wood on their property, which contains the chemicals manufactured and supplied by HICKSON and/or the Wolmanized ® pressure-treated wood product.
The State of Florida has passed broad consumer laws to protect consumers and end users from dangerous and defective products and from those who engage in unconscionable acts or practices in the conduct of any trade or commerce. See Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.
The Plaintiff's chosen forum should be given weight where, as here, there is no evidence that the Defendant will be unable to defend themselves in Florida. In Justballs, there was no evidence that injury was mainly or only in Michigan. 97 F.Supp. at 815. Nevertheless, the court determined that because there was injury in Michigan and the defendant had chosen to use marks allegedly similar to those of the plaintiff, the defendant had assumed the risk of defending an infringement suit in Michigan. Over 70% of the CCA treated wood purchased in this country is purchased and used in Florida. Accordingly, over 70% of the chemicals manufactured by HICKSON to be used in CCA treated wood is shipped into Florida every year. HICKSON cannot argue that they could not expect to be haled into court in Florida. There have been injuries in Florida and because Defendant purposefully targeted Florida businesses and consumers and has had an ongoing relationship with thousands and thousands of Florida businesses and residents, HICKSON assumed the risk of defending a lawsuit in Florida. Id.
As the Eleventh Circuit stated in Sculptchair, 94 F.3d at 632, when discussing the burden of the defendants defending themselves in a foreign jurisdiction:
"....modem methods of transportation and communication have significantly ameliorated [defendant's] burden. McGee v. Internat'l Life Ins. Co., 355 U.S. 220, 223 (1957). Counterweighted by Florida's obvious interest in stamping out the type of nefarious economic
chicanery alleged in [plaintiff's] complaint and [plaintiff's] natural interest in obtaining relief for the alleged injustices, we have no difficulty concluding that the exercise of personal jurisdiction over [defendants] comports with traditional notions of substantial justice and fair play. See Asahi, 480 U.S. at 114."
Thus, the burden on the Defendant HICKSON is not compelling and, in viewing the evidence and all reasonable inferences in the light most favorable to Plaintiff, this Court should exercise personal jurisdiction over the Defendant. The combined conduct on the part of HICKSON in connection with manufacturing CCA chemicals also satisfies the Zippo test in order for this Court to exercise personal jurisdiction.
VI. PLAINTIFF SHOULD BE ABLE TO CONDUCT REASONABLE DISCOVERY
Plaintiff has been unable to obtain any discovery responses to date. Therefore, should this Court be inclined to grant Defendant's motion, Plaintiff alternatively requests that this Court reserve ruling and allow Plaintiff to conduct reasonable discovery regarding Defendant's jurisdictional arguments and the relationship between HICKSON, Hickson USA and the other Defendants in this suit, including the amount of revenue generated from supplying CCA chemicals to Florida businesses and consumers.
WHEREFORE, the premises considered, Plaintiff, JERRY JACOBS, individually and on behalf of all others similarly situated, respectfully request this Honorable Court enter an appropriate Order denying Defendant's Motion to Dismiss Plaintiff's Class Action Complaint for Lack of Personal Jurisdiction. Alternatively, Plaintiff requests this Court reserve ruling on this issue in order to allow Plaintiff the opportunity to conduct reasonable discovery regarding the extent of the relationship between Defendants, HICKSON, and Hickson Corporation, USA and the relationship between HICKSON and each Defendant, respectively.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 3rd day of January, 2002 all attorneys of record for Defendants on the attached List of Attorneys.
BY:/s/_________
ARONOVITZ TRIAL LAWYERS
Tod Aronovitz, Esq.
Florida Bar No. 186430
Matthew P. Slingbaum, Esq.
Florida Bar No. 0195979
150 West Flagler Street
Suite 2700 - Museum Tower
Miami, Florida 33130
Telephone 305-372-2772
Facsimile 305-375-0243
ta@aronovitzlaw.com
KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C.
Gary S. Graifman, Esq.
Robert D. Wilkins, Esq.
747 Chestnut Ridge Road
Chestnut Ridge, New York 10977
Telephone 845-356-2570
Facsimile 845-356-4335
McCREA & McCREA
David McCrea, Esq.
119 South Walnut Street
P.O. Box 1310
Bloomington, Indiana 47402-1310
Telephone 812-336-4840
Facsimile 812-336-5307
BUCKLAND & SCHUMM
Jerry Schumm, Esq.
120 Prospect Street
Bellingham, Washington 98225
Telephone 360-671-1881
Facsimile 360-733-3538
Attorneys for Plaintiff
SERVICE LIST OF ALL ATTORNEYS
ATTORNEYS FOR PLAINTIFF: Tod Aronovitz, Esq. Matthew P. Slingbaum, Esq. ARONOVITZ TRIAL LAWYERS 150 W. Flagler Street Suite 2700 - Museum Tower Miami, Florida 33130 Telephone 305-372-2772 Facsimile 305-375-0243 E-Mail ta@aronovitzlaw.com Gary Graifman, Esq. Robert D. Wilkins, Esq. KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C. 747 Chestnut Ridge Road, Suit 200 Chestnut Ridge, N.Y. 10977-6216 Telephone 845-356-2570 Facsimile 845-356-4335 E-Mail ggraifman@kgglaw.com David McCrea, Esq. McCREA & McCREA 119 South Walnut Street P.O. Box 1310 Bloomington, Indiana 47402-1310 Telephone 812-336-4840 Facsimile 812-336-5307 E-Mail dsmccrea@aol.com Jerry Schumm, Esq. BUCKLAND & SCHUMM 120 Prospect Street Bellingham, Washington 98225 Telephone 360-671-1881 Facsimile 360-733-3538 jerry@bucklandandschum.com ATTORNEYS FOR DEFENDANTS: Attorneys for Osmose, Inc., Hickson Corp. & ARCH Chemicals, Inc.: Stanley H. Wakshlag, Esq. Lawrence D. Silverman, Esq. AKERMAN, SENTERFITT & EIDSON 1 S.E. Third Avenue, 28th Floor Miami, Florida 33131-1715 Telephone 305-374-5600 Facsimile 305-374-5095 Robert L. Shuftan, Esq. David Kanter, Esq. WILDMAN, HARROLD, ALLEN & DIXON 225 West Wacker Drive 30th Floor Chicago, Illinois 60606-1229 Telephone 312-201-2000 Facsimile 312-201-2555 Attorneys for Hoover Treated Wood Products, Inc.: Patrick Perrone, Esq. MCCARTER & ENGLISH, LLP 4 Gateway Center 100 Mulberry Street Newark, NJ 07102-4096 Telephone 973-639-6952 Facsimile 973-624-7070 Stephen W. Beik, Esq. LAW OFFICES OF STEPHEN W. BEIK, P.A. 1101 N. Lake Destiny Drive, Suite 120 Maitland, Florida 32751 Telephone 407-875-0999 Facsimile 407-875-1230 beikPA@aol.com 19 Attorneys for Robbins Manufacturing Co.: Robert Gough, III, Esq. Dennis P. Waggoner, Esq. HILL WARD & HENDERSON 101 E. Kennedy Boulevard, Suite 3700 P. O. Box 2231 Tampa, Florida 33601 Telephone 813-221-3900 Facsimile 813-221-2900 Attorneys for Home Depot, U.S.A., Inc.: Larry H. Kunin, Esq. John McNaughton, Esq. Seslee S. Smith, Esq. MORRIS, MANNING & MARTIN, LLP 1600 Atlanta Financial Center 3343 Peachtree Road N.E. Atlanta, Georgia 30326 Telephone 404-233-7000 Facsimile 404-365-9532 Attorneys for Lowe's Home Centers, Inc.: Raymond A. Haas, Esq. Andrew J. Lewis, Esq. David W. Longley, Esq. HAAS, LEWIS & LONGLEY 1901 N. 13th Street, Suite 300 P. O. Box 1700 Tampa, Florida 33601 Telephone 813-253-5333 Facsimile 813-254-8555 Garry J. Rhoden, Esq. Keith M. Carter, Esq. Daniel P. Mitchell, Esq. William A. Gillen, Jr., Esq. GRAY HARRIS ROBIBNSON SHACKLEFORD FARRIOR P. O. Box 3324 Tampa, Florida 33601 Telephone 813-273-5000 Facsimile 813-273-5145 Attorneys for Wood Treaters, Inc.: Steven M. Brady, Esq. Swartz, Campbell & Detweiler Huntington Bank Plaza 2000 Main Street, Suite 805 Ft. Myers, Florida 33901 941-790-7700 941-332-5325 fax Attorneys for Follen Wood Preserving Co., Inc.: Jim Warren, Esq. MITCHELL, MCNUTT & SAMS 200 S. Larnar Street, Suite 900N P. O. Box 1005 Jackson, Mississippi 39215-1005 Telephone 601-948-8508 Facsimile 601-948-8537 Clinton S. Payne, Esq. CLARKE, SILVERGLATE, CAMPBELL, WILLIAMS & MONTGOMERY 799 Brickell Plaza, 9th Floor Miami, Florida 33131 Telephone 305-377-0700 Facsimile 305-377-3001