Donson v. Air And Liquid Systems, Inc. et al

MOTION to dismiss for lack of jurisdiction

M.D. Fla.November 29, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA CASE NO. 16-03022-SDM-MAP RALPH DONSON, Plaintiff, vs. AIR & LIQUID SYSTEMS, CORPORATION, et al. Defendant. / DEFENDANT DRAVO CORPORATION’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND SUPPORTING MEMORANDUM OF LAW Dravo Corporation, pursuant to Fed. R. Civ. Pro. 12(b)(2), seeks an Order dismissing Plaintiff’s claims based on lack of personal jurisdiction. I. INTRODUCTION Plaintiff’s complaint fails to plead a prima facie case for this Court to exercise personal jurisdiction over Dravo. Dravo is neither incorporated in Florida nor maintains its principal place of business in Florida. Even if plaintiff provided a more detailed factual pleading regarding Dravo, the allegations regarding his injury make clear that it has no connection with this forum. The only remaining path to obtaining personal jurisdiction over Dravo would be to show that it is so “at home” in Florida that subjecting it to jurisdiction in this state would not be inconsistent with the Due Process Clause of the Fourteenth Amendment. As demonstrated herein Plaintiff cannot make this showing, and thus exercising general jurisdiction over Dravo Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 1 of 11 PageID 2154 2 9680582.1 would be inconsistent with the Supreme Court’s decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014). II. STATEMENT OF FACTS/PROCEDURAL HISTORY A. Plaintiff’s Claims This is an asbestos products liability action.1 Dravo is one of twenty (20) defendants. Plaintiff, a boiler tender, served in the U.S. Navy where he worked aboard several ships. See Affidavit of Ralph Donson- Sworn Information Form Pursuant to Fl. Stat. 774.205(3)(a)-(d) [D.E. 2, pg. 53 at ¶¶ (c)-(e)]. Plaintiff claims he also worked in a naval shipyard and a Factory Mutual plant. Id. at ¶ (c). As to Dravo, Donson claims exposure to asbestos from “at a minimum Dravo pumps’ insulation, packing and gaskets.” [D.E. 2, pg. 5 at ¶ 15]. None of Donson’s alleged asbestos exposures occurred in Florida. His land-based work was in Illinois, South Carolina and New Jersey. Id. at pg. 53 ¶(c). The alleged exposures took place from 1970-1982. Id. at ¶ (d). See also [D.E. 2 pg. 2 at ¶ 3]. And, as a result of working with or around Defendants’ products, Donson claims he has asbestosis. [D.E. 2 pg. 53 at ¶(f)]. B. Dravo’s Lack of Florida Contacts Dravo is a Pennsylvania corporation with a mailing address in Pittsburgh, Pennsylvania. See Affidavit of J. Daniel Chacko, attached hereto as Exhibit “A”. Dravo is no longer in business and has no current business operations in any state, and has not had any 1 Plaintiff filed suit in Hillsborough County Circuit Court on September 29, 2016. On October 26, 2016 Defendant Crane Co. filed a notice of removal in the United States District Court for the Middle District of Florida. [D.E. 1]. Thereafter Dravo filed its Answer to plaintiff’s complaint on November 1, 2016, which specifically pled lack of personal jurisdiction as an affirmative defense to plaintiff’s complaint. [D.E. 26, pg. 6 ¶ 12]. Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 2 of 11 PageID 2155 3 9680582.1 business operations since at least 1988. Id. Dravo has never been a Florida corporation, and does not presently operate, conduct, engage in or carry on any business here. Id. Dravo does not have an office or agency in this state, does not own, use or possess or hold a mortgage or other lien on any real property in this state. Similarly, Dravo has not contracted to insure any person, property, or risk located within this state. Id. Plaintiff has not and cannot allege that there is any connection between any conduct of Dravo in this forum and his claims. In fact, Plaintiff’s only jurisdictional allegations related to Dravo state simply that “Dravo Corporation is a foreign corporation organized in the State of Pennsylvania and authorized to do business in the State of Florida.” [D.E. 2, pg. 5 at ¶ 15]. As noted above, plaintiff alleges that this exposure happened in Illinois, New Jersey, South Carolina, and on the Great Lakes. For these reasons as well as those set forth below, this Court lacks personal jurisdiction over Dravo and must dismiss Plaintiff’s claims. III. LEGAL STANDARD REGARDING PERSONAL JURISDICTION OVER A FOREIGN CORPORATION. This Court, sitting in diversity, may exercise personal jurisdiction to the extent authorized under Florida law and the United States Constitution. Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002) (citations omitted). In response to a jurisdictional challenge, the Court conducts a two-step inquiry. First, it determines whether the defendant’s activities satisfy Florida’s long-arm statute. Id. The Eleventh Circuit has made clear that “Florida's long-arm statute is to be strictly construed” and that “the plaintiff bears the burden of proving personal jurisdiction.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.1996). If the Long Arm statute is satisfied, the Court considers whether the exercise of personal jurisdiction comports with the due process requirements of the Fourteenth Amendment. Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 3 of 11 PageID 2156 4 9680582.1 Id.2 The due process analysis focuses on whether a defendant has “fair warning” that a particular activity may subject him to the jurisdiction of a foreign sovereign. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 ( 1985). Florida’s long-arm statute contains two provisions which may confer personal jurisdiction over non-resident defendants. The first, Fla. Stat. § 48.193(1)(a), confers specific jurisdiction if a party’s activities in the forum relate to the cause of action alleged in the complaint. See Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000). Jurisdiction under this provision requires “some ‘direct affiliation,’ ‘nexus,’ or ‘substantial connection’ between the cause of action and the activities within the state.” Sun Trust Bank v. Sun Int’l. Hotels, Ltd., 184 F.Supp.2d 1246, 1269 (S.D. Fla. 2001) (citation omitted). The second provision of Florida’s long-arm statute is Fla. Stat. § 48.193(2), which confers general jurisdiction. “General jurisdiction, as distinguished from specific jurisdiction, does not require that the plaintiff’s cause of action arise out of the nonresident defendant’s contacts with the forum state.” Am. Overseas Marine Corp. v. Patterson, 632 So. 2d 1124, 1127 (Fla. 1st DCA 1994). It does require, however, that the defendant be “engaged in substantial and not isolated activity within this state,” even if such activity is unrelated to the cause of action being litigated. Fla. Stat. § 48.193(2). After confirming the existence of either specific or general jurisdiction under the long- arm statute, the court then analyzes whether exercising jurisdiction pursuant to the statute comports with federal due process requirements. The Due Process Clause imposes a more restrictive requirement than Florida’s Long Arm statute. Melgarejo v. Pycsa Panama, S.A., 537 2 Florida applies the same test. See Dunkel v. Dedman, No. 3:15-cv-948-J-34PDB, 2016 WL 4870502, at * 5 (M.D. Fla. Aug. 17, 2016) (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502-03 (Fla. 1989)). Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 4 of 11 PageID 2157 5 9680582.1 Fed. Appx. 852, 860 (11th Cir. 2013). “The mere proof of any one of the several circumstances enumerated in section 48.193 as the basis for obtaining jurisdiction of nonresidents does not automatically satisfy the due process requirement of minimum contacts.” Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). However, before the Court engages in the first step of the above noted analysis, it should first determine whether the Complaint contains sufficient material facts to support the exercise of jurisdiction. As the Eleventh Circuit recently reiterated, “a plaintiff seeking to establish personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction.” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013). See also Yepez v. Regent Seven Seas Cruises, 10-23920-CIV, 2011 WL 3439943, *1 (S.D. Fla. 2011) (“[t]he party who invokes the jurisdiction of the court has the burden of establishing jurisdiction. Rule 8(a) requires the plaintiff to set forth in the complaint the factual support for jurisdiction. Fed.R.Civ.P. 8(a)”). IV. PLAINTIFF’S COMPLAINT FAILS TO ALLEGE SUFFICIENT FACTS TO SUPPORT EVEN THE MOST BASIC EXERCISE OF PERSONAL JURISDICTION. The only jurisdictional allegations against Dravo are that it is a Pennsylvania corporation registered to do business in Florida. The affidavit of J. Daniel Chacko makes clear, however, that Dravo is not presently registered to do business in Florida. Even if both jurisdictional allegations were true they would still be insufficient to make the required prima facie showing. It is well established that “[t]he paradigm all-purpose forums for general jurisdiction are a corporation’s place of incorporation and principal place of business.” Daimler AG v. Bauman, 134 S.Ct. 746, 749 (2014). Accordingly, pursuant to plaintiff’s complaint Dravo’s all-purpose forum should be Pennsylvania. Plaintiff has not pled that Dravo is incorporated in Florida or that Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 5 of 11 PageID 2158 6 9680582.1 its principal place of business is Florida. Absent those allegations, Florida cannot be an all- purpose forum for Dravo. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). Since the Complaint does not otherwise allege facts conferring personal jurisdiction on some other grounds under Florida’s Long Arm Statute, plaintiff’s complaint must be dismissed. V. EVEN IF THIS COURT LOOKS PAST PLAINTIFF’S PLEADING DEFICIENCIES, IT SHOULD FIND THAT THERE IS NO BASIS TO EXERCISE PERSONAL JURISDICTION OVER THE DEFENDANT UNDER EITHER PROVISION OF FLORIDA’S LONG ARM STATUTE. Plaintiff’s pleading deficiencies are dispositive of this issue and should result in dismissal. However, should the Court look past those failures it must analyze plaintiff’s complaint under Florida’s Long Arm Statute § 48.193. The relevant inquiry is whether there are allegations that support the exercise of personal jurisdiction over the Defendant under either the specific jurisdiction provisions in §48.193(1)(a), or the general jurisdiction provisions of §48.193(2). A. Plaintiff Has Not And Cannot Allege That His Causes Of Action Are Connected With Dravo’s Contacts To This Forum. Dravo Is Therefore Not Subject To Specific Jurisdiction Under § 48.193(1)(a). Plaintiff alleges only that he was exposed to asbestos while working on several U.S. Navy vessels, in Great Lakes Illinois, in a shipyard in South Carolina, and at Factory Mutual plant in New Jersey. [D.E. 2, pgs. 2-3 at ¶ 3, 4]. This exposure happened as Plaintiff “was working with and around” products “sold, distributed, installed or promoted by” Dravo and other defendants. Id. The specific jurisdiction provision of Florida’s Long Arm Statute, § 48.193(1)(a), gives several grounds for a court exercising personal jurisdiction over a foreign defendant whose conduct gives rise to a cause of action in this State: Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 6 of 11 PageID 2159 7 9680582.1 (1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts: 1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state. 2. Committing a tortious act within this state. 3. Owning, using, possessing, or holding a mortgage or other lien on any real property within this state. 4. Contracting to insure a person, property, or risk located within this state at the time of contracting. 5. With respect to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage. 6. Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either: a. The defendant was engaged in solicitation or service activities within this state; or b. 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) Plaintiff has not pled any of the above. The Complaint thus fails to make allegations that grant this Court authority to exercise personal jurisdiction under the specific jurisdiction section of Florida’s Long Arm Statute. Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 7 of 11 PageID 2160 8 9680582.1 Plaintiff could seek leave to amend his complaint to cure the above defect, but the Court should not allow amendment because it would be futile. See Hall v. United Ins. Co. of America, 367 F.3d 1255 (11th Cir. 2004) (noting that although leave to amend is freely given, District Courts may properly deny amendment where such amendment would be futile). Plaintiff’s complaint makes clear that the events giving rise to this lawsuit did not occur in Florida and that no conduct of Dravo in Florida led to his injury. Absent “some ‘direct affiliation,’ ‘nexus,’ or ‘substantial connection’ between the cause of action and the activities within the state”, the exercise of personal jurisdiction by this Court does not comport with Florida’s Long Arm statute. Sun Trust Bank 184 F.Supp.2d at 1269. Put simply, the defendant’s contact with the forum must be the ‘but-for’ cause of the tort. See Fraser v. Smith, 594 F.3d. 842, 850 (11th Cir. 2010). Such facts do not exist herein by admission of Plaintiff’s own pleadings. Another Florida District Court found that an asbestos products manufacturer was not subject to personal jurisdiction in Florida, even though the Plaintiff therein satisfied one of the specific jurisdiction criteria under § 48.193(1)(a). The Court found that jurisdiction did not exist in Florida because plaintiff’s injury was in no way related to the Defendant’s in-state activity. See Waite v. AII Acquisition Corp., et al., 2016 WL 2346743 (M.D. Fla. 2016) (Hon. J. Bloom). That case also involved a Florida resident suing for an injury that accrued in Florida. However, in Waite the defendant had more extensive contact with Florida, including filing multiple lawsuits as a plaintiff in Florida, maintaining a manufacturing plant in Florida, and manufacturing and selling the exact same product in Florida that plaintiff claimed to be injured by. Nonetheless, because none of that conduct specifically caused plaintiff’s exposures which occurred in another state, the court denied specific jurisdiction. Id. If specific jurisdiction was absent in Waite, it similarly does not exist herein. Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 8 of 11 PageID 2161 9 9680582.1 VI. GENERAL JURISDICTION UNDER § 48.193(2) DOES NOT EXIST BECAUSE PLAINTIFF HAS NOT AND CANNOT ALLEGE THAT DRAVO IS “AT HOME” IN FLORIDA. Since plaintiff cannot satisfy the specific jurisdiction section of Florida’s Long Arm Statute, his only chance for obtaining personal jurisdiction over Dravo rests on the general jurisdiction provision of the statute, § 48.193(2). This section allows for a foreign defendant to be haled into court in Florida even if its connections to the forum do not give rise to a plaintiff’s cause of action. The circumstances for allowing the exercise of such jurisdiction are as follows: 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. Fla. Stat. § 48.193(2). As noted above this form of jurisdiction is called “general jurisdiction”, because it does not connect any specific conduct of the defendant to the plaintiff’s injury. In construing the requirement of “substantial and not isolated activity” under § 48.193(2), Florida courts have recognized that it is the functional equivalent of the constitutional due process analysis. Am. Overseas, 632 So.2d at 1127 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984)). In 2014, the United States Supreme Court re-visited the requirements of due process under the Fourteenth Amendment in the case of Daimler AG v. Bauman, 134 S.Ct. 746 (2014). In Daimler the Supreme Court clarified that constitutional due process requires more than simply “continuous and systematic” contacts, rather the test is whether a foreign corporation’s ties to the forum state are “so continuous and systematic as to render [it] essentially at home in the forum state.” Id. at 761. Analyzing the Supreme Court’s decision in 2015, the Eleventh Circuit Court of Appeal further refined the standard and held general jurisdiction only exists outside of a Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 9 of 11 PageID 2162 10 9680582.1 corporation’s state of incorporation or principal place of business in “exceptional” cases. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir. 2015). Under Carmouche the inquiry is whether “the corporation’s activities in the forum closely approximate the activities that ordinarily characterize a corporation’s place of incorporation or principal place of business.” Id. at 1205. As made clear in the attached affidavit, Dravo has not engaged in such activities in Florida. See Ex. A. Dravo has no current business operations in Florida; does not employ people in Florida; does not own, use or possess or hold a mortgage or other lien on any real property in this state; and does not engage in any business activities in this state. Id.3 Plaintiff’s only allegation regarding general jurisdiction is that Dravo is registered to do business in Florida. But it is not. First, this is untrue as asserted in the affidavit of J. Daniel Chacko. Second, such an allegation is insufficient to establish general jurisdiction. See Sofrar, S.A. v. Graham Engineering Corp., 35 F.Supp.2d 919 (S.D. Fla. 1999) citing Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 182 (5th Cir. 1992) (noting that several courts in other jurisdictions and the Fifth Circuit Court of Appeals have found that registering to do business in a state does not amount to sufficient contacts to warrant the exercise of personal jurisdiction.). Courts in this District have also recently found that an asbestos defendant’s registration to do business in Florida is not grounds for general jurisdiction. See Waite v. AII Acquisition Corp. et al, 2016 WL 2346768 (M.D. Fla 2016) (Hon. J. Bloom) (“The Eleventh Circuit has made clear that sales and marketing efforts, even together with holdings and operations in Florida, are insufficient to render a nonresident company at home in Florida. Likewise, Union Carbide’s invocation of Florida law and its maintenance of a registered agent in Florida are not activities 3 And this has been the case for several decades. Exhibit “A”. Notably, this Court’s jurisdictional analysis should examine Dravo’s contacts with Florida for a reasonable time period prior to filing suit. See U.S. v. Subklew, 2001 WL 896473, at *3 (S.D. Fla. 2001). Dravo has had no business operations at all since 1988. Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 10 of 11 PageID 2163 11 9680582.1 that closely approximate those ordinarily characterizing a corporation’s place of incorporation or principal place of business”). Dravo is far from “at home” in Florida and thus the exercise of general personal jurisdiction over Dravo in this Court would not comport with due process, and thus is not allowable under Fla. Stat. § 48.193(2). Because neither specific jurisdiction nor general jurisdiction exist under Florida’s Long Arm statute, this court need not reach the second portion of its inquiry before ordering dismissal of Plaintiff’s claims. WHEREFORE, Dravo respectfully requests this Honorable Court grant the present motion and enter an order dismissing it from this action. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished electronically via the Florida Courts E-Filing Portal on Counsel of Record, this 29th day of November, 2016. /s/ Michael R. Holt M. STEPHEN SMITH Florida Bar No. 0202541 E-mail: ssmith@rumberger.com (primary) ssmithsecy@rumberger.com jhernandez@rumberger.com(secondary) MICHAEL R. HOLT Florida Bar No. 0483450 E-mail: mholt@rumberger.com (primary) mholtsecy@rumberger.com (secondary) RUMBERGER, KIRK & CALDWELL A Professional Association Brickell City Tower, Suite 3000 80 S.W. 8th Street Miami, Florida 33130-3037 Telephone: (305) 358-5577 Telecopier: (305) 371-7580 Attorneys for Dravo Corporation Case 8:16-cv-03022-SDM-MAP Document 79 Filed 11/29/16 Page 11 of 11 PageID 2164 EXHIBIT A Case 8:16-cv-03022-SDM-MAP Document 79-1 Filed 11/29/16 Page 1 of 3 PageID 2165 Case 8:16-cv-03022-SDM-MAP Document 79-1 Filed 11/29/16 Page 2 of 3 PageID 2166 Case 8:16-cv-03022-SDM-MAP Document 79-1 Filed 11/29/16 Page 3 of 3 PageID 2167