Abelard et al v. Clean Earth, Inc. et al

REPLY to Response to Motion

D.N.J.September 14, 2018

Beth S. Rose Vincent Lodato SILLS CUMMIS & GROSS P.C. One Riverfront Plaza Newark, NJ 07102 Counsel for Defendants Sandvik Mining and Construction USA, LLC, Sandvik, Ltd., solely as the successor in interest to the assets of Sandvik Construction Mobile Crushers and Screens, Ltd. as of January 1, 2016 and Extec Mobile Crushers and Screens, Ltd., formerly known as Sandvik Construction Mobile Crushers and Screens, Ltd. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JEAN ABELARD and GUERDA ABELARD as Administrators ad Prosequendum for the Estate of MARVIN ABELARD, Plaintiff, v. CLEAN EARTH, INC.; SANDVIK MINING & CONSTRUCTION USA, LLC; SANDVIK CONSTRUCTION MOBILE CRUSHERS AND SCREENS, LTD.; EASTERN PROCESSING EQUIPMENT, INC. d/b/a PROMAC GROUP; SCREEN SERVICE TECHNOLOGY, INC. d/b/a ADVANCED EQUIPMENT SOLUTIONS; SANDVIK, LTD., SOLELY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:16-cv-05276-KM- MAH Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 1 of 22 PageID: 1513 AS THE SUCCESSOR IN INTEREST TO EXTEC MOBILE CRUSHERS AND SCREENS, LTD., FORMERLY KNOWN AS SANDVIK MOBILE CRUSHERS AND SCREENS, LTD.; and ABC CORPS. 1-10 (fictitious entities), Defendants. ) ) ) ) ) ) ) ) ) REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OF DEFENDANTS SANDVIK, LTD., SOLELY AS THE SUCCESSOR IN INTEREST TO THE ASSETS OF SANDVIK CONSTRUCTION MOBILE CRUSHERS AND SCREENS, LTD. AS OF JANUARY 1, 2016, AND EXTEC MOBILE CRUSHERS AND SCREENS, LTD., FORMERLY KNOWN AS SANDVIK CONSTRUCTION MOBILE CRUSHERS AND SCREENS, LTD Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 2 of 22 PageID: 1514 TABLE OF CONTENTS Page -i- INTRODUCTION ................................................................................................... 1 REPLY ..................................................................................................................... 3 I. No Specific Jurisdiction Exists over Extec or Sandvik, Ltd. Under a Stream-of-Commerce Theory or Otherwise, and Plaintiffs are not Entitled to Jurisdictional Discovery ......................... 3 A. The Third Circuit has Rejected the Stream-of-Commerce Theory ........................................................................................ 3 B. Plaintiffs Have Not Met Their Burden To Show That Specific Personal Jurisdiction Can Be Exercised Over Sandvik, Ltd. or Extec ............................................................... 5 1. Purposeful Availment ...................................................... 5 2. Plaintiffs’ Alleged Injuries Did Not “Arise From” The Alleged Contacts .................................................... 10 3. Exercise of Jurisdiction Over Sandvik, Ltd. and Extec Would Be Unreasonable ...................................... 12 4. Plaintiffs’ Reliance on Bartow is Misplaced ................. 13 C. Plaintiffs Are Not Entitled to Jurisdictional Discovery ........... 15 CONCLUSION ....................................................................................................... 17 Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 3 of 22 PageID: 1515 -ii- TABLE OF AUTHORITIES Page(s) Cases Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 ...................................................... 5 Bartow v. Extec Screens & Crushers, Ltd., 53 F. Supp. 2d 518 (D. Mass. 1999) ....................................................... 13, 14, 15 Benitez v. JMC Recycling Sys., Ltd., 97 F. Supp. 3d 576 (D.N.J. 2015) ......................................................................... 5 Bristol-Myers Squibb Co. v. Superior Court, ––– U.S. ––––, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017) ................. 4, 10, 13, 15 Display Works, LLC v. Bartley, 182 F. Supp. 3d 166 (D.N.J. 2016) ................................................................... 7, 8 D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009) ........................................................................... 3, 5, 6 Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147 (3d Cir. 2010) ............................................................................... 15 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) (plurality opinion) ........................................................................................... 3, 4, 10, 13, 14 O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312 (3d Cir. 2007) ............................................................................... 11 Oticon, Inc. v. Sebotek Hearing Sys., LLC, 865 F. Supp. 2d 501 (D.N.J. 2011) ....................................................................... 6 Shuker v. Smith & Nephew, PLC, 885 F.3d 760 (3d Cir. 2018) ................................................................... 3, 4, 5, 13 Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prod. Co., 75 F.3d 147 (3d Cir. 1996) ................................................................................. 12 Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 4 of 22 PageID: 1516 TABLE OF AUTHORITIES (continued) Page -iii- Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014) ............................. 13, 14 Other Authorities Fed. R. Civ. P. 12(b)(2) .............................................................................................. 1 Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 5 of 22 PageID: 1517 COME NOW, by special appearance only, Sandvik, Ltd., solely as the successor in interest to the assets of Sandvik Construction Mobile Crushers and Screens, Ltd. as of January 1, 2016 (“Sandvik, Ltd.”), and Extec Mobile Crushers and Screens, Ltd., formerly known as Sandvik Construction Mobile Crushers and Screens, Ltd. (“Extec”),1 and hereby submit this Reply Brief in Further Support of their Motion to Dismiss Plaintiffs’ Fourth Amended Complaint for Lack of Personal Jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). INTRODUCTION Plaintiffs’ admissions in their Response greatly narrow the issues to be resolved. Plaintiffs admit that a New Jersey court cannot exercise general jurisdiction over Extec and Sandvik, Ltd. Further, given Plaintiffs’ inability to satisfy their burden to demonstrate that Extec and Sandvik, Ltd. had any non- fortuitous contacts with the state of New Jersey, Plaintiffs admit that the only 1 In a footnote, Plaintiffs assert that Extec and Sandvik, Ltd. should be treated as the same entity “until such time that Defendants can establish that they are completely separate entities with separate functions.” (Pl. Resp., p. 6). Extec and Sandvik, Ltd., however, have provided such evidence in affidavit form. For the purposes of analyzing personal jurisdiction, it is well settled that the activities of separate defendants must be separately assessed. Walden v. Fiore, 571 U.S. 277, 284, 134 S. Ct. 1115, 1122, 188 L. Ed. 2d 12 (2014) (holding that specific jurisdiction must arise out of contacts that the “defendant himself” creates with the forum State, noting that the court has “consistently rejected attempts to satisfy the defendant-focused minimum contacts inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State.”). Plaintiffs have not set forth any legitimate argument as to why these rules do not apply here. Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 6 of 22 PageID: 1518 theory under which they are asking this Court to exercise specific jurisdiction over Extec and Sandvik, Ltd. is a stream-of-commerce theory, under the premise that Extec and/or Sandvik, Ltd. placed the QE440 at issue into the stream-of- commerce, which QE440 was eventually purchased by Clean Earth, Inc. (“Clean Earth”) in New Jersey after being sold to Sandvik Mining and Construction USA, LLC (“SMC, USA”) and later, Screen Service Technology, Inc. d/b/a Advanced Equipment/Eastern (“Advanced Equipment”). Plaintiffs have not met – and cannot meet – their burden to demonstrate that this court can exercise specific personal jurisdiction over Extec or Sandvik, Ltd. under a stream-of-commerce theory or otherwise. The Third Circuit recently rejected the stream-of-commerce theory of specific personal jurisdiction, and emphasized that specific personal jurisdiction does not extend any further than the traditional inquiry. Purposeful availment requires more than targeting a national or international market; rather, it is Plaintiffs’ burden to demonstrate that both Sandvik, Ltd. and Extec each purposefully availed itself of the privilege of conducting activities specifically in New Jersey, and that such activities in New Jersey gave rise to Plaintiffs’ alleged injuries. Plaintiffs have fallen far short of meeting this burden. Both Sandvik, Ltd. and Extec should be dismissed for lack of personal jurisdiction. Moreover, because jurisdictional discovery would not Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 7 of 22 PageID: 1519 elucidate any facts in support of Plaintiffs’ specific personal jurisdiction theory, Plaintiffs’ request for jurisdictional discovery should be denied. REPLY I. No Specific Jurisdiction Exists over Extec or Sandvik, Ltd. Under a Stream-of-Commerce Theory or Otherwise, and Plaintiffs are not Entitled to Jurisdictional Discovery. A. The Third Circuit has Rejected the Stream-of-Commerce Theory. The basic premise of a “stream-of-commerce” theory of specific personal jurisdiction is that “specific personal jurisdiction exists over a non-resident defendant when that defendant has injected its goods into the forum state indirectly via the so-called stream-of-commerce, rendering it foreseeable that one of the defendant’s goods could cause injury in the forum state.” Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018). Earlier this year, in a products liability action, the Third Circuit succinctly rejected the stream-of-commerce theory, noting as follows: A plurality of Supreme Court Justices has twice rejected the stream- of-commerce theory, see J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 877-85, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) (plurality opinion); Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 108-13, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion), stating, in a manner consistent with our own case law, that plaintiffs must instead rely on “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Asahi, 480 U.S. at 109, 107 S.Ct. 1026; see D'Jamoos, 566 F.3d at 102-03. Indeed, the Supreme Court has recently held that “[t]he bare fact that [a non-resident defendant] contracted with a [resident] distributor is Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 8 of 22 PageID: 1520 not enough to establish personal jurisdiction in the State.” Bristol- Myers Squibb Co. v. Superior Court, ––– U.S. ––––, 137 S. Ct. 1773, 1783, 198 L.Ed.2d 395 (2017). We thus have no cause to revisit our Court’s precedent on this issue, and we decline to adopt the Shukers’ stream-of-commerce theory of specific personal jurisdiction. See D'Jamoos, 566 F.3d at 102-06. Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018). Accordingly, and consistent with the analysis in Shuker, this Court also should ignore Plaintiffs’ attempt to apply the stream-of-commerce theory of specific personal jurisdiction and should focus on the traditional elements of specific personal jurisdiction.2 B. Plaintiffs Have Not Met Their Burden To Show That Specific Personal Jurisdiction Can Be Exercised Over Sandvik, Ltd. or Extec. 2 Even under a stream-of-commerce analysis, Plaintiffs’ attempt to exercise specific personal jurisdiction over Sandvik, Ltd. and Extec fails. In Nicastro, the Court noted that utilization of the stream-of-commerce theory “does not amend the general rule of personal jurisdiction.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 882, 131 S.Ct. 2780 (2011). Thus, regardless of whether the stream-of- commerce theory applies, it has to be established that each defendant “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. As the Court noted in Nicastro, “it is the defendant’s actions, not his expectations, that empower a State's courts to subject him to judgment.” Id. at 883. Here, Plaintiffs’ allegations set forth an alleged intention to target the national and international markets, not New Jersey, specifically. Even under a stream-of-commerce theory, intentions to target a national or international market cannot subject a defendant to personal jurisdiction in a specific sovereign. Id. at 886 (holding that there could be no jurisdiction because the alleged contacts “ may reveal an intent to serve the U.S. market, but they do not show that J. McIntyre purposefully availed itself of the New Jersey market.”). Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 9 of 22 PageID: 1521 To satisfy their burden, Plaintiffs must demonstrate: 1) Sandvik, Ltd.’s and Extec’s individual acts of purposeful availment of the privilege of conducting activities within New Jersey; 2) injuries arising out of or relating to those alleged activities in New Jersey; and 3) that the exercise of jurisdiction otherwise comports with fair play and substantial justice. Benitez v. JMC Recycling Sys., Ltd., 97 F. Supp. 3d 576, 582 (D.N.J. 2015). The facts cited in Plaintiffs’ response do not satisfy these standards with respect to Sandvik, Ltd. or Extec. 1. Purposeful Availment With respect to the purposeful availment requirement, it is beyond settled that purposeful availment “requires contacts that amount to a deliberate reaching into the forum state to target its citizens.” D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 103–04 (3d Cir. 2009). This standard cannot be satisfied by efforts to target a “national market” that necessarily include the state at issue. Shuker, 885 F.3d at 780 (“what is necessary is a deliberate targeting of the forum, so efforts to exploit a national market that necessarily included Pennsylvania are insufficient.”); D'Jamoos, 566 F.3d at 104 (“Pilatus’s efforts to exploit a national market necessarily included Pennsylvania as a target, but those efforts simply do not constitute the type of deliberate contacts within Pennsylvania that could amount to purposeful availment of the privilege of conducting activities in that state. Rather, any connection of Pilatus to Pennsylvania merely was a Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 10 of 22 PageID: 1522 derivative benefit of its successful attempt to exploit the United States as a national market.”). The purposeful availment analysis protects foreign defendants by preventing courts from exercising personal jurisdiction when such contacts are merely “random” or “fortuitous.” Oticon, Inc. v. Sebotek Hearing Sys., LLC, 865 F. Supp. 2d 501, 511 (D.N.J. 2011) (“the jurisdictional nexus must also be the result of intentional conduct by the defendant and not merely random, fortuitous, or attenuated contacts.”). Here, as set forth in Sandvik, Ltd.’s and Extec’s motion to dismiss, neither entity has any non-fortuitous contacts with New Jersey. Both entities are organized under the laws of the United Kingdom. (Sandvik, Ltd. Decl., ¶ 3); (Extec Decl., ¶ 3). Neither entity is registered to do business in New Jersey, or has any presence in New Jersey whatsoever, as neither entity has any employees in New Jersey, offices in New Jersey, nor conducts any sales in New Jersey. (Sandvik, Ltd. Decl., ¶ 4-8); (Extec Decl., ¶ 4-8). Neither Sandvik, Ltd. nor Extec advertise in periodicals or media specifically directed at the residents of New Jersey, nor directly target the New Jersey market through advertising. (Sandvik, Ltd. Decl., ¶ 7); (Extec Decl., ¶ 7). Moreover, neither entity conducts any sales in New Jersey, or offers any maintenance or repair services to New Jersey residents for equipment. (Sandvik, Ltd. Decl., ¶ 8); (Extec Decl., ¶ 8). Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 11 of 22 PageID: 1523 Plaintiffs do not meet their burden to show that any alleged contacts between Sandvik, Ltd. or Extec and New Jersey, as analyzed below, were anything other than the random, non-deliberate and fortuitous “contacts” that are insufficient to establish purposeful availment. Indeed, the sole alleged contact with New Jersey that Plaintiffs highlight in their brief is that the alleged “port of entry” of the QE440 at issue was Newark, New Jersey. (Pl. Resp., p. 6). In so arguing, Plaintiffs ignore the very important fact that the QE440 was not purchased by or sold to a New Jersey resident; quite the contrary, the UK manufacturer sold the QE440 to SMC, USA, a Georgia company, for sale to Advanced Equipment, a Pennsylvania company. The fact that the “port of entry” into the United States was in New Jersey was random and certainly does not indicate that Extec deliberately and purposefully availed itself of the protections of New Jersey’s laws.3 3 Plaintiffs cite Display Works, LLC v. Bartley, 182 F. Supp. 3d 166, 182 (D.N.J. 2016) to support their argument that “a relevant factor” to show an “intent to serve the forum’s market” under a stream-of-commerce theory is when “the defendant has physical entry into the forum, whether in person, by agent, goods, or by some other means.” (Pl. Resp. at 10-11). Display Works was not a stream-of-commerce case, so Plaintiffs’ attempt to characterize this as a “factor” in support of a stream of-commerce specific personal jurisdiction analysis is plainly wrong. Id. at 170. Regardless, contrary to Plaintiffs’ implication, Display Works does not stand for the proposition that goods passing through a state on the way to their final destination gives rise to jurisdiction in the pass-through state; rather, the court in Display Works analyzed the exercise of personal jurisdiction over a California resident in a case involving breach of contract, tortious interference, and defamation claims. Id. at 170; 181-82. Specifically, an employee who was working out of Display Works’ California office resigned, kept thumb drives Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 12 of 22 PageID: 1524 Plaintiffs further allege that Sandvik, Ltd.’s sales literature4 states that Sandvik has an “established and successful worldwide distributor network,” that Sandvik, Ltd.’s website states that it is a “truly global company with representation in more than 130 countries,” that contact information for Sandvik, Ltd. and/or Extec is included on the QE440’s Technical Specification sheet, Operator’s Manual, and Parts Manual, and that a “Service Bulletin” with maintenance and service information provides contact information of the “Defendants” and “was intended for distribution to the ‘Market area’ of the United States.” (Pl. Resp. at 7- 8).5 Setting aside the truth or falsity of these allegations,6 such allegations, even if true, do nothing more than establish efforts to target a national market, not New Jersey specifically. For example, citation to a “worldwide distributor network” and self-description as a “truly global company” underscore that if anything, Sandvik, containing confidential and proprietary information, and went to work for Display Works’ competitor. Display Works sued the employee in New Jersey where its headquarters was located; thus, the case involved assessing the employees’ physical contacts with New Jersey to determine if he could be subject to jurisdiction there. 4 Plaintiffs try to attribute all mentions of “Sandvik” to “Sandvik, Ltd.” where they perceive it to be helpful to them; however, this is a mischaracterization of the evidence that they cite. For example, the “sales literature” does not refer to “Sandvik, Ltd.” with respect to the “established and successful worldwide distributor network” or its “global organization.” See Pl. Resp., Ex. G. Rather, it refers to the “Sandvik” brand, generally. 5 Plaintiff’s allegations concerning SMC, USA’s activities and contacts are irrelevant (Pl. Response, at 7; 10). SMC, USA’s contacts are not at issue, because SMC, USA has not contested personal jurisdiction in New Jersey. 6 See Footnotes 4-5, supra. Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 13 of 22 PageID: 1525 Ltd.’s marketing efforts were targeted at global customers, not those residing in New Jersey. Similarly, inclusion of contact information on parts manuals or operations manuals that are globally distributed has no specific connection to the state of New Jersey. Moreover, and consistent with Sandvik, Ltd.’s and Extec’s testimony that they do not directly target the New Jersey market through advertising, such allegations do not set forth any contacts with New Jersey, nor indicate an effort to target the New Jersey market, specifically. (Sandvik, Ltd. Decl., ¶ 7); (Extec Decl., ¶ 7). Plaintiffs’ argument tells the tale. Plaintiffs insist that “SMC USA covered the United States as its national territory,” so that “even if Defendants did not know that this particular QE440 would end up in New Jersey, Defendants had knowledge sufficient to reasonably anticipate it would be sold and utilized in New Jersey.”7 (Pl. Resp., at 13). However, this is precisely why an exercise of specific personal jurisdiction is not appropriate. “[A]s a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.” Nicastro, 564 U.S. at 882. Indeed, Plaintiffs’ argument completely obliterates the constitutional requirement that defendants engage in some purposeful contact with the forum state as a prerequisite to the exercise of specific personal jurisdiction. 7 Extec manufactured the QE440 at issue. (Extec Decl., ¶ 9). Plaintiffs’ repeated attempt to treat Sandvik, Ltd. and Extec as the “same” is unsupported by any evidence. Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 14 of 22 PageID: 1526 Plaintiffs’ allegations are fatally insufficient to satisfy the purposeful availment prong. 2. Plaintiffs’ Alleged Injuries Did Not “Arise From” The Alleged Contacts Nor have Plaintiffs come close to establishing that Plaintiffs’ alleged injuries arose from any of these alleged contacts by Sandvik, Ltd. or Extec. The “arising from” element requires that “the suit . . . arise of out or relate to the defendant’s contact with the forum”, such that there is an “affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773, 1780, 198 L. Ed. 2d 395 (2017). It is this element that confines specific jurisdiction to “adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Id.; O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 322 (3d Cir. 2007) (“Out-of-state residents who ‘exercise the privilege of conducting activities within a state . . . enjoy the benefits and protection of’ the state’s laws; in exchange, they must submit to jurisdiction over claims that arise from or relate to those activities.”) (emphasis added). Plaintiffs only allege one contact between Sandvik, Ltd. and/or Extec and the state of New Jersey, specifically – that the QE440’s “port of entry” was Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 15 of 22 PageID: 1527 Newark, New Jersey. (Pl. Resp. at 15). In the context of the facts of this case, however, such a contact is merely fortuitous. As Plaintiffs acknowledge, the QE440 at issue here was sold by Extec to SMC, USA, a Georgia company. It was then subsequently sold to Advanced Equipment, a Pennsylvania company. The fact that the QE440’s first stop randomly was a New Jersey port is unimportant and is not a fact that could give rise to Plaintiffs’ injuries. Likewise, Plaintiffs’ allegation that the QE440 eventually “found its final destination” in New Jersey does not relate to any alleged activities of Sandvik, Ltd. or Extec in the state of New Jersey, at all; rather, it was Advanced Equipment, a Pennsylvania company, that sold the QE440 to Clean Earth in New Jersey, without any involvement of Sandvik, Ltd. or Extec. (Pl. Resp. at 15). The remainder of the allegations that Plaintiffs argue as pertaining to the “arising from” element simply do not satisfy the constitutional requirement. Regardless of truth or falsity of Plaintiffs’ allegations about Sandvik, Ltd.’s or Extec’s alleged “marketing” of products “throughout the entire United States,” the inclusion of Sandvik, Ltd.’s and/or Extec’s contact information in the QE440’s “technical specifications, operator’s manual, and the parts manuals”, the alleged “Service Bulletin”, and news release concerning Extec, none of these contacts constitute contacts with New Jersey from which Plaintiffs’ injuries arose. (Pl. Resp. p. 15-16). In other words, such alleged contacts are not “forum related” and Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 16 of 22 PageID: 1528 are irrelevant to the exercise of specific personal jurisdiction over Sandvik, Ltd. and Extec in New Jersey. See, e.g., Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prod. Co., 75 F.3d 147, 151 (3d Cir. 1996) (“specific jurisdiction is invoked when the cause of action arises from the defendant’s forum related activities”). 3. Exercise of Jurisdiction Over Sandvik, Ltd. and Extec Would Be Unreasonable Finally, Plaintiffs have come forward with no compelling reasons why an exercise of jurisdiction over Sandvik, Ltd. or Extec would be reasonable. The bottom line is that when all of Plaintiffs’ emphasis on Sandvik, Ltd.’s and Extec’s alleged national and international contacts are removed, there is only a single proposed alleged contact with the state of New Jersey: that it served as the port of import of the QE440, although the QE440 was sold to a Georgia company (SMC, USA) and subsequently, a Pennsylvania company (Advanced Equipment). It is undisputed that Sandvik, Ltd. and Extec have no other connection with the state of New Jersey. (Sandvik, Ltd. Decl., ¶ 4-8); (Extec Decl., ¶ 4-8). As set forth above, this is simply not enough to force Sandvik, Ltd. and/or Extec to litigate in New Jersey, and exercise of jurisdiction over either entity would be unreasonable. 4. Plaintiffs’ Reliance on Bartow is Misplaced. Plaintiffs rely heavily on the Bartow decision, but such reliance is misplaced. Bartow v. Extec Screens & Crushers, Ltd., 53 F. Supp. 2d 518 (D. Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 17 of 22 PageID: 1529 Mass. 1999). As an initial matter, Bartow is from 1999 and predates all of the recent opinions from the United States Supreme Court and the Third Circuit that have heavily influenced the specific personal jurisdiction analysis. See, e.g., Bristol-Myers, 137 S. Ct. 1773 (2017); Nicastro, 564 U.S. 873 (2011); Walden v. Fiore, 571 U.S. 277, 284 (2014); Shuker, 885 F.3d 760, 780 (3d Cir. 2018). In the context of the instant case, the Bartow court’s considerations are irrelevant. In Bartow, it was accepted as fact that the distributor was serving as the defendant’s exclusive distributor in three specific states, which included Massachusetts. Id. at 520-21. Thus, not only was the distributor focused on Massachusetts (as opposed to a national market), the Bartow court considered the distributor’s actions as the defendant’s actions, for purposes of the jurisdictional analysis. This is not the typical presumption. Rather, it is well-established that contacts between third parties and a forum State are irrelevant to the specific jurisdiction inquiry and that the “relationship must arise out of contacts that the “defendant himself” creates with the forum State.” Walden, 571 U.S. at 284. Here, there is no allegation that SMC, USA and/or Advanced Equipment were operating as either Sandvik, Ltd.’s or Extec’s agent. Moreover, it is important that the QE440’s ownership went from Extec (the manufacturer), to SMC, USA, and then to Advanced Equipment in Pennsylvania. (Extec Decl., ¶ 9). It was Advanced Equipment that subsequently sold the QE440 to a New Jersey company, Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 18 of 22 PageID: 1530 and this sale is entirely unconnected to any action or omission of Sandvik, Ltd., Extec, or SMC, USA. Nicastro, 564 U.S. at 878 (finding no jurisdiction, highlighting that “an independent company agreed to sell J. McIntyre's machines in the United States. J. McIntyre itself did not sell its machines to buyers in this country beyond the U.S. distributor, and there is no allegation that the distributor was under J. McIntyre's control.”). Additionally, the Bartow court highlighted that the defendant had “numerous direct contacts with Massachusetts in addition to its ‘indirect’ contacts through its distributor.” Bartow, 53 F. Supp. 2d at 525. Such “additional contacts”, to the extent that such contacts are unconnected to Plaintiffs’ alleged injuries, are irrelevant to a specific jurisdiction analysis. Bristol-Myers, 137 S. Ct. at 1780 (The “arising from” element requires that “the suit . . . arise of out or relate to the defendant’s contact with the forum”). Regardless, Sandvik, Ltd. and Extec have already provided testimony demonstrating a dearth of contacts with New Jersey. (Sandvik, Ltd. Decl., ¶ 4-8); (Extec Decl., ¶ 4-8). C. Plaintiffs Are Not Entitled to Jurisdictional Discovery Plaintiffs are only entitled to jurisdictional discovery if they have presented factual allegations that “suggest with reasonable particularity the possible existence of the requisite contacts between the party and the forum state.” Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir. 2010). “A Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 19 of 22 PageID: 1531 plaintiff may not, however, undertake a fishing expedition based only upon bare allegations, under the guise of jurisdictional discovery.” Id. Plaintiffs request the Court to allow jurisdictional discovery to determine: “(1) if Defendants maintain liability insurance in the United States; (2) the number of machines sold in New Jersey in the past decade; (3) if any marketing research was conducted in this region; (4) if Defendants had any other agents acting as distributors; (5) if any distributors/dealerships directly serve this region; (6) if defendants invoice the dealerships/buyers directly; (7) if defendants maintain a security interest in the distributors/dealerships’ machines; (8) if defendants directly sell their machines to dealerships/buyers; and (9) if there is any exclusive dealership agreement with any distributors.” (Pl. Resp. at 19-20). The aforementioned topics for discovery are completely irrelevant to the specific personal jurisdiction analysis. In light of Plaintiffs’ admission that they do not contend that Sandvik, Ltd. and Extec are subject to general jurisdiction in New Jersey, they represent nothing more than a fishing expedition. As stated by the Supreme Court in Bristol-Myers: For specific jurisdiction, a defendant's general connections with the forum are not enough. As we have said, “[a] corporation’s ‘continuous activity of some sorts within a state ... is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.’” Id., at 927, 131 S. Ct. 2846 (quoting International Shoe, 326 U.S., at 318, 66 S. Ct. 154). When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant's Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 20 of 22 PageID: 1532 unconnected activities in the State. See id., at 931, n. 6, 131 S. Ct. 2846 (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales”). 137 S. Ct. at 1781. Importantly, there is no dispute regarding the QE440 at issue, which was manufactured by Extec, sold to SMC, USA, sold to Advanced Equipment, and subsequently was sold to Clean Earth. (Pl. Resp., p. 7). The topics on which Plaintiffs request discovery do not relate to the QE440 at issue; they relate to other machines or products, not at issue in this litigation, which on their face could not have given rise to Plaintiffs’ injuries and are, thus, irrelevant to a specific jurisdiction analysis. Plaintiffs have not presented with reasonable particularity the existence of contacts required for specific personal jurisdiction, and their request for jurisdictional discovery should be denied. CONCLUSION For the reasons set forth above and in their motion to dismiss, Sandvik, Ltd. and Extec respectfully and individually request that they each be dismissed from this action for lack of personal jurisdiction, that all claims and counterclaims asserted against Sandvik, Ltd. and Extec be dismissed for lack of personal jurisdiction, that all costs of this litigation be assessed to Plaintiffs, and that this Court award such further and appropriate relief as this Court deems appropriate. Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 21 of 22 PageID: 1533 Dated: September 14, 2018 Respectfully submitted, SILLS CUMMIS & GROSS P.C. By: s/ Beth S. Rose Beth S. Rose Vincent Lodato The Legal Center One Riverfront Plaza Newark, New Jersey 07102 Counsel for Defendants Sandvik Mining and Construction USA, LLC, Sandvik, Ltd., solely as the successor in interest to the assets of Sandvik Construction Mobile Crushers and Screens, Ltd. as of January 1, 2016 and Extec Mobile Crushers and Screens, Ltd., formerly known as Sandvik Construction Mobile Crushers and Screens, Ltd. Of Counsel Holly Hempel NELSON MULLINS RILEY & SCARBOROUGH LLP 201 17th Street NW, Suite 1700 Atlanta, GA 30363 [To appear pro hac vice with the Court’s permission] Case 2:16-cv-05276-KM-MAH Document 112 Filed 09/14/18 Page 22 of 22 PageID: 1534