State of Rhode Island v. Alon Refining Krotz Springs et al

MOTION to Dismiss for Lack of Jurisdiction WITH SUPPORTING MEMO

D.R.I.January 11, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND ____________________________________ STATE OF RHODE ISLAND, Plaintiff, v. ALON REFINING KROTZ SPRINGS, et al. Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) CA No. 16-cv-495 January 11, 2017 TOTAL PETROCHEMICALS & REFINING USA, INC.’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Defendant, Total Petrochemicals & Refining USA, Inc. (“TPRI”), respectfully moves this Court to dismiss Plaintiff’s Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. TPRI is not subject to personal jurisdiction in this forum for the reasons set forth in the accompanying Memorandum of Law, which is filed herewith. WHEREFORE, Defendant TPRI prays that its motion be granted. Respectfully submitted, DARROWEVERETT LLP /s/ Jeffrey M. Padwa Jeffrey M. Padwa, Esq. (#5130) One Turks Head Place, Suite 1200 Providence, RI 02903 Tel: (401) 453-1200 Fax: (401) 453-1201 jpadwa@darroweverett.com Case 1:16-cv-00495-S-PAS Document 81 Filed 01/11/17 Page 1 of 2 PageID #: 370 BRACEWELL LLP Amy E. Parker Pro hac vice application pending Carlton D. Wilde, III Pro hac vice application pending 711 Louisiana Street, Suite 2300 Houston, TX 77002-2770 Tel: (713) 221-1373 Fax: (713) 221-2103 amy.parker@bracewelllaw.com cd.wilde@bracewelllaw.com ATTORNEYS FOR DEFENDANT TOTAL PETROCHEMICALS & REFINING USA, INC. CERTIFICATE OF SERVICE I hereby certify that on the 11th of January, 2017, a true and correct copy of Defendant Total Petrochemicals & Refining USA, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction was filed with the Court’s CM/ECF electronic filing system, causing copies of the same to be sent electronically to all registered users/counsel of record. /s/ Jeffrey M. Padwa Jeffrey M. Padwa (#5130) Case 1:16-cv-00495-S-PAS Document 81 Filed 01/11/17 Page 2 of 2 PageID #: 371 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND ____________________________________ STATE OF RHODE ISLAND, Plaintiff, v. ALON REFINING KROTZ SPRINGS, et al. Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) CA No. 16-cv-495 January 11, 2017 TOTAL PETROCHEMICALS & REFINING USA, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Defendant Total Petrochemicals & Refining USA, Inc. (“TPRI”) files this Memorandum of Law in Support of its Motion to Dismiss for Lack of Personal Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). I. SUMMARY OF ARGUMENT The Complaint should be dismissed because personal jurisdiction does not exist over TPRI. Plaintiff fails to establish personal jurisdiction for three fundamental reasons: (1) Plaintiff fails to cite any specific facts regarding TPRI upon which either specific or general jurisdiction could be established; (2) TPRI’s de minimis contacts with Rhode Island bear no relationship to the allegations in the Complaint; and (3) in both scope and substance, TPRI’s contacts with Rhode Island are not so “continuous or systematic” as to render TPRI “essentially at home” in Rhode Island. Therefore, neither general nor specific jurisdiction is established. TPRI’s motion to dismiss should be granted. Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 1 of 17 PageID #: 372 -2- II. LEGAL STANDARD Plaintiff bears the burden of proof to establish personal jurisdiction. Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009). To establish jurisdiction over a nonresident defendant, Plaintiff “must demonstrate that Rhode Island’s long-arm statute grants jurisdiction and that the exercise of jurisdiction under the statute is consistent with the Due Process Clause of the United States Constitution.” Id. To satisfy this burden, Plaintiff must make a prima facie showing of jurisdiction based upon evidence of specific facts that, “if credited, are enough to support findings of all facts essential to personal jurisdiction.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002). “Lumping all the defendants together for the purposes of alleging personal jurisdiction is patently insufficient.” Savage v. Galaxy Media & Mktg. Corp., No. 11 Civ. 6791 (NRB), 2012 WL 2681423, at *6 n.13 (S.D.N.Y. July 5, 2012) (internal punctuation omitted); see also Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 288 n.2 (1st Cir. 1999) (“Jurisdictionally speaking, each defendant must stand or fall based on its own contacts with the forum.”). Rhode Island’s long-arm statute confers jurisdiction over nonresident defendants to the full extent permitted by the Due Process Clause. R.I. Gen. Laws § 9-5-33(a); Astro-Med, 591 F.3d at 8 (citing N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 16 (1st Cir. 2009)); Cerberus Partners v. Gadsby & Hannah, LLP, 836 A.2d 1113, 1118 (R.I. 2003). A court’s exercise of personal jurisdiction over an out-of-state defendant comports with due process only “if the defendant has certain minimum contacts with the State such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 2 of 17 PageID #: 373 -3- Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal citation and punctuation omitted). The minimum contacts analysis requires the Court to distinguish between the two forms of jurisdiction, specific and general. See Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 923-24 (2011). To establish specific jurisdiction, the suit must “arise out of or relate to” the defendant’s contacts with the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). General jurisdiction requires the defendant’s “affiliations with the State [to be] so continuous and systematic as to render [it] essentially at home in the forum State.” Daimler, 134 S. Ct. at 754 (citing Goodyear, 564 U.S. at 919). III. PLAINTIFF HAS NOT ESTABLISHED PERSONAL JURISDICTION OVER TPRI A. Plaintiff cites no specific facts regarding TPRI upon which to establish either specific or general jurisdiction. To establish personal jurisdiction over TPRI, Plaintiff must make a prima facie showing of jurisdiction based upon evidence of specific facts that, “if credited, are enough to support findings of all facts essential to personal jurisdiction.” Daynard, 290 F.3d at 51. Plaintiff cites one factual allegation specific to TPRI in its eighty-one page Complaint: [TPRI] is a Delaware corporation with its principal place of business at: 1201 Louisiana Street, Suite 1800, Houston, Texas, 77002, doing business in the State of Rhode Island. Total Petrochemicals & Refining USA, Inc. may be served with process through its registered agent, CT Corporation System, 450 Veterans Memorial Parkway, Suite 7A, East Providence, RI 02914. Compl. at ¶ 16(dd). TPRI does not dispute this allegation. Its principal place of business is located in Texas. It has a registered agent in Rhode Island, and it does some business there. However, merely having a registered agent in a state and doing business there does not, on its own, establish personal jurisdiction over an out-of-state defendant. See Daimler, 134 S. Ct. at Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 3 of 17 PageID #: 374 -4- 761; see also Int’l Shoe, 326 U.S. at 318. Plaintiff then makes a generalized assertion of personal jurisdiction that lumps all thirty-two Defendants into a broad-sweeping recitation: [T]his Court may exercise personal jurisdiction over Defendants because they are either authorized to do business in Rhode Island, are registered with the Rhode Island Secretary of State, do sufficient business with sufficient minimum contacts in Rhode Island, or otherwise intentionally avail themselves of the Rhode Island market through the sale, manufacturing, distribution and/or processing of petroleum-related products in Rhode Island to render the exercise of jurisdiction over Defendants by the Rhode Island courts consistent with traditional notions of fair play and substantial justice. Compl. at ¶ 20. Similarly, Plaintiff broadly alleges all Defendants “refined, marketed and/or otherwise supplied (directly or indirectly) MTBE and/or gasoline containing MTBE such that each defendant knew or should have known that it would be delivered into areas affecting the property and waters of the State.” Id. at ¶ 16. Plaintiff does not support this blanket allegation with any specific allegations against TPRI. Plaintiff’s jurisdictional assertions fail to articulate even one specific fact regarding TPRI’s connections with Rhode Island or Plaintiff’s asserted causes of action. Such an absence of jurisdictional facts in previous MTBE litigation formed the basis for dismissal: “[n]o allegation links [Defendant] to the refining, supplying, marketing or addition of MTBE to gasoline.” In re MTBE Prods. Liab. Litig., No. 14 CIV. 1014, 2014 WL 1778984, at *3 (S.D.N.Y. May 5, 2014) (dismissing MTBE defendant when the Commonwealth’s complaint failed to allege facts that defendant refined, supplied, marketed, or added MTBE to gasoline in Puerto Rico or purposefully directed its product toward the forum). For this reason, the Complaint should be dismissed for failing to assert personal jurisdiction. See Savage, 2012 WL 2681423, at *6 n.13 (“Lumping all the defendants together for the purposes of alleging personal jurisdiction is patently insufficient.”) (internal punctuation omitted); see also Phillips Exeter, 196 Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 4 of 17 PageID #: 375 -5- F.3d at 288 n.2 (“Jurisdictionally speaking, each defendant must stand or fall based on its own contacts with the forum.”). B. TPRI lacks minimum contacts with Rhode Island necessary to establish both specific and general jurisdiction. As set forth in the attached declaration, TPRI’s contacts with Rhode Island are, and have been, de minimis and entirely unrelated to Plaintiff’s allegations regarding MTBE, demonstrating a lack of specific jurisdiction. TPRI has never owned or operated a petroleum refining operation in Rhode Island or any refinery that could reasonably be characterized as having served Rhode Island. Declaration of Kim Arterburn (“Arterburn Decl.”) attached hereto as Ex. 1, at ¶¶ 2, 3. There are no locations in Rhode Island in which TPRI directly sells or markets gasoline. Id. at ¶ 3. TPRI has never owned, operated, or leased a gasoline station in Rhode Island. Id. at ¶ 4. It has not manufactured, blended, or sold MTBE in Rhode Island. Id. at ¶ 3. TPRI has never owned, operated, or leased a gasoline terminal, underground storage tank, or other gasoline distribution facility in Rhode Island. Id. at ¶ 4. At no time has TPRI entered into a contractual relationship with any jobber or other distributor for the delivery of MTBE or gasoline containing MTBE to retail service stations or other gasoline distribution or storage facilities located in Rhode Island. Id. at ¶ 5. Similarly, the facts demonstrating TPRI’s de minimis contacts with Rhode Island are insufficient to establish general jurisdiction over TPRI in the State. As a percentage of TPRI’s overall sales, the dollar amount of products sold in Rhode Island is miniscule, comprising less than 1% of TPRI’s sales during the 2011 through 2015 timeframe. Id. at ¶ 11. Polymer products sold by TPRI in Rhode Island have no relationship to Plaintiff’s allegations regarding MTBE. Id. at ¶ 3. Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 5 of 17 PageID #: 376 -6- From August 21, 2000 to July 31, 2014, TPRI had one polymers sales employee in Rhode Island who worked from his house and reported to a General Sales Manager in Houston. Id. at ¶ 10. TPRI has never leased or owned real estate, including office space, in Rhode Island. Id. at ¶ 9. The facts show TPRI’s contacts with Rhode Island, both in substance and extent, fall far short of the minimum contacts required to establish general jurisdiction. See Daimler, 134 S. Ct. at 760-62 (refusing to exercise personal jurisdiction over company despite its continuous, extensive contacts with the forum, including multiple permanent facilities with numerous employees and a label as the largest supplier of luxury vehicles in the State). Indeed, TPRI’s minor sales activity combined with its one employee in Rhode Island come nowhere close to the level of contacts involved in Daimler, and even Daimler found insufficient contacts to exercise general jurisdiction. See id. at 761-62. The Court here should find the same. (i) TPRI Is Not Subject To Specific Jurisdiction Because This Lawsuit Does Not Arise Out Of Or Relate To TPRI’s Contact With Rhode Island. “Specific jurisdiction analysis under the Due Process Clause has three distinct components: relatedness, purposeful availment, and reasonableness.” Bluetarp Fin., Inc. v. Matrix Constr. Co., 709 F.3d 72, 80 (1st Cir. 2013) (citing Phillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008)). “An affirmative finding on each of these elements is needed to support a specific jurisdiction finding.” Id. (citing Negrón-Torres v. Verizon Commc’n, Inc., 478 F.3d 19, 24 -25 (1st Cir. 2007)). If no relatedness or purposeful availment is found, then there is no need to analyze the reasonableness factors. A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 61-62 (1st Cir. 2016). Plaintiff fails to establish any of these required elements. Relatedness. The relatedness element of specific jurisdiction requires that the plaintiff’s causes of action arise from or relate to the defendant’s contacts with the forum state. Bluetarp Fin., 709 F.3d at 80. To satisfy this prong, Plaintiff “must show a nexus between its claims and Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 6 of 17 PageID #: 377 -7- [TPRI’s] forum-based activities.” Id. at 59. And the Court must “hone in ‘on the relationship between the defendant and the forum.’” Id. This Court, on prior occasions, has held that “de minimis” contacts are not enough to satisfy the relatedness requirement. See Indep. Bank v. Balbo Constr. Corp., C.A. No. 14-20 S, 2014 U.S. Dist. LEXIS 93092, at *3-4 (D.R.I. July 9, 2014) (Smith, C.J.) (finding relatedness prong of specific jurisdiction analysis not satisfied because defendant’s “contact with the State of Rhode Island is, at best, de minimis”) (emphasis added). Plaintiff fails to satisfy this element because the causes of action it asserts do not arise from or relate to TPRI’s minimal contacts with Rhode Island. Id.; Compl. at ¶ 20; Ex. 1 at ¶¶ 2- 11. Plaintiff has not alleged specific facts to establish a relation between TPRI’s conduct in the State and the injuries Plaintiff alleges it suffered. As set forth in the previous section of this brief and the attached declaration, TPRI’s activities in Rhode Island have nothing to do with MTBE, MTBE in gasoline, or any alleged act or omission by which groundwater contamination occurred. Ex. 1 at ¶¶ 2-11. Purposeful Availment. The purposeful availment element of specific jurisdiction requires that a defendant “perform[] ‘some act by which [it] purposefully [avails] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.’” Cerberus Partners, 836 A.2d at 1119 (citing Rose v. Firstar Bank, 819 A.2d 1247, 1251 (R.I. 2003); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Plaintiff fails on this element because TPRI has not performed any such acts in Rhode Island, nor does Plaintiff support this allegation with any specific facts. “In the purposeful availment inquiry, the focus is on the defendant’s intentions . . . . The defendant’s contacts ‘must be deliberate, and not based on the unilateral actions of another party.’” Bluetarp Fin., 709 F.3d Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 7 of 17 PageID #: 378 -8- at 82 (citing Carreras v. PMG Collins, LLC, 660 F.3d 549, 555 (1st Cir. 2011); Phillips, 530 F.3d at 28). “Purposeful availment is a ‘rough quid pro quo,’ that is, ‘when a defendant deliberately targets its behavior toward the society or economy of a particular forum, the forum should have the power to subject the defendant to judgment regarding that behavior.’” Daniels Agrosciences LLC v. Ball DPF, LLC, No. CA 13-268 ML, 2013 WL 5310208, at *11 (D.R.I. Sept. 20, 2013) (citing Bluetarp Fin., 709 F.3d at 82). Because “there are no allegations or other evidence in the record to suggest that [TPRI] purposefully availed itself to the privileges, benefits, and protections of doing business in Rhode Island,” TPRI is not subject to jurisdiction in the State. Anderson v. Metro. Life Ins. Co., 694 A.2d 701, 703 (R.I. 1997) (emphasis in original). The Complaint sweepingly alleges that all Defendants refined, manufactured, blended, and/or supplied MTBE or gasoline containing MTBE to Rhode Island, and that MTBE contaminated the State’s waters. Compl. at ¶¶ 1, 5. Plaintiff’s allegations regarding “indirect” sales of gasoline containing MTBE that may have reached Rhode Island are vague, factually unsupported, and legally insufficient to establish specific jurisdiction over TPRI because they fail to establish TPRI’s intention to target Rhode Island. Compl. at ¶ 16. Indeed, the “‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.” Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112 (1987) (plurality opinion) (emphasis in original). In Asahi, the Supreme Court announced a divided opinion on the issue of purposeful availment, disagreeing over the so-called “stream of commerce” test. See generally id. 480 U.S. 102. Justice O’Connor’s plurality opinion found that Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 8 of 17 PageID #: 379 -9- [t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant . . . indicat[ing] an intent or purpose to serve the market in the forum State, [is required] . . . . [A] defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Id. at 112. Justice O’Connor’s approach is widely known as the “stream of commerce plus” test. See e.g., Tower Mfg. Corp. v. Shanghai Ele Mfg. Corp., 533 F. Supp. 2d 255, 265 (D.R.I. 2008). Justice Brennan’s concurring opinion disagreed that “additional conduct” is required to justify the exercise of personal jurisdiction. Asahi, 480 U.S. at 117 (Brennan, J., concurring). In Justice Brennan’s view, “[a]s long as [the defendant] . . . is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” Id. Justice Brennan’s approach has, however, been criticized by the Court for “ma[king] foreseeability the touchstone of jurisdiction.” J. McIntyre Mack., Ltd. v. Nicastro, 564 U.S. 873, 883 (2011) (plurality opinion). But, “‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980). In a more recent Supreme Court decision, Justice Kennedy rejected Brennan’s Asahi concurrence, finding that “advocating a rule based on general notions of fairness and foreseeability, is inconsistent with the premises of lawful judicial power.” McIntyre, 564 U.S. at 883 (plurality opinion). In adopting O’Connor’s Asahi opinion, Justice Kennedy found that a “defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.” Id. at 882-83 (emphasis added) (further noting that “[i]t is a defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment”). The Court reasoned that a rule allowing for the Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 9 of 17 PageID #: 380 -10- consideration of foreseeability would result in “undesirable consequences[;] . . . . The owner of a small Florida farm might sell crops to a large nearby distributor . . . who might then distribute them to grocers across the country. If foreseeability were the controlling criterion, the farmer could be sued in Alaska or any number of other States’ courts without ever leaving town.” Id. at 885. While other state courts have struggled to uniformly apply the stream-of-commerce standards of Asahi and McIntyre, Rhode Island has firmly adopted Justice O’Connor’s stream of commerce plus test. Anderson, 694 A.2d at 703. This Court is bound to do the same here. Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995) (in determining whether a non-resident defendant is subject to its jurisdiction, a federal court sitting in diversity jurisdiction “is the functional equivalent of a state court sitting in the forum state.”). In Anderson, the Supreme Court of Rhode Island adopted Justice O’Connor’s stream of commerce plus test, citing Asahi for the proposition that “[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” 694 A.2d at 703 (quoting Asahi, 480 U.S. at 112 (plurality opinion)). The Court found personal jurisdiction lacking when a defendant placed raw materials into the stream of commerce, directed the raw materials to a non-Rhode Island location, and a third party eventually brought the raw materials into Rhode Island. 1 Id. 1 TPRI is unaware of any gasoline containing MTBE that it refined, manufactured, or ever held title to ever entering Rhode Island. Ex. 1 at ¶¶ 3-5. But if any such gasoline ever entered Rhode Island, it did so entirely at the discretion and direction of third parties. Id. at ¶ 5. This is not enough to establish jurisdiction. See McIntyre, 564 U.S. at 882- 83. Applying that same principle in In re MTBE Product Liability Litigation, the MDL court found that a Texas- based defendant was not subject to personal jurisdiction in Puerto Rico even though its MTBE was blended and distributed in Puerto Rico because the defendant never manufactured, marketed, delivered, sold, solicited, or advertised its MTBE in Puerto Rico; rather, it merely sold MTBE to third parties in a series of spot sales. 2014 WL 1778984, at *2-4 (quoting Walden v. Fiore, 134 S. Ct. 1115, 1122-23 (2014) for the proposition that the jurisdictionally relevant relationship “must arise out of contacts the ‘defendant himself’ creates with the forum[;] . . . a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction” (emphasis in original)). Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 10 of 17 PageID #: 381 -11- Furthermore, whether TPRI ever maintained a reasonable expectation that its MTBE or MTBE-related products could potentially reach Rhode Island is legally insufficient to support jurisdiction. McIntyre, 131 S. Ct. at 882-83. Actions, not expectations, remain the deciding factor. See Anderson, 694 A.2d at 703 (“the mere fact that a company produces and/or ships raw material . . . to a non-Rhode Island destination where it is then incorporated by an independent entity into a product that is in turn shipped by that entity into Rhode Island does not in and of itself constitute sufficient minimum contacts for Rhode Island to exercise personal jurisdiction over the original producer”). In addition to the Rhode Island Supreme Court, the First Circuit has also faithfully adhered to the stream of commerce plus standard in conducting a specific jurisdiction analysis. See Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 681-83 (1st Cir. 1992) (adopting the stream of commerce plus standard and rejecting stream of commerce standard); see also Sawtelle, 70 F.3d at 1393 (“This Court has previously declined to adopt the ‘stream of commerce’ theory of personal jurisdiction . . . .”); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 85 (1st Cir. 1997) (reaffirming the stream of commerce plus standard in finding no specific jurisdiction conferred in Puerto Rico where product manufactured by defendant outside of the forum was ultimately resold to plaintiff there by a third party); Daniels Agrosciences, 2013 WL 5310208, at *16 n.4 (citing to McIntyre and Rodriguez as the standard for specific jurisdictional analysis “based on the sale or use of [a] product in the forum”). Specific jurisdiction does not exist in this case because no part of TPRI’s conduct either occurred in Rhode Island or bears any connection to the facts underlying the causes of action asserted. See Walden, 134 S. Ct. at 1118 (declining to permit the exercise of personal jurisdiction where “[n]o part of petitioner’s course of conduct occurred in the [forum], and he Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 11 of 17 PageID #: 382 -12- maintained no jurisdictionally relevant contacts with that forum”); see also Helicopteros, 466 U.S. at 414 (holding specific jurisdiction does not exist where the claims do not arise out of, and are not related to defendant’s contacts with the forum); Cerberus Partners, 836 A.2d at 1121 (finding specific jurisdiction did not exist because defendant’s presence in Rhode Island did not meet the relatedness part of the specific jurisdictional analysis). Reasonableness. The reasonableness element of specific jurisdiction requires that the exercise of jurisdiction over the defendant be reasonable and consistent with principles of justice and fair play. Bluetarp Fin., 709 F.3d at 83. Asserting jurisdiction over TPRI here would offend traditional notions of fair play and substantial justice. Asahi, 480 U.S. at 113-14. Courts consider the following factors when determining the reasonableness of the exercise of jurisdiction: (i) “the burden on the defendant;” (ii) “the interests of the forum State;” (iii) “the plaintiff’s interest in obtaining relief;” (iv) “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies;” and (v) “the shared interest of the several States in furthering fundamental substantive social policies.” Id. at 113 (quoting Volkswagen, 444 U.S. at 292). In this case, TPRI would be significantly and unduly burdened by being forced to litigate in Rhode Island. It has only a tiny and unrelated presence in Rhode Island, and its officers are located over 1,800 miles away in Houston, Texas. Ex. 1 at ¶ 2. Even if that were not enough, the exercise of personal jurisdiction would still be improper: [T]he Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against [a] corporate defendant with which the State has no contacts, ties, or relations.’ Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 12 of 17 PageID #: 383 -13- Volkswagen, 444 U.S. at 294 (internal citations omitted). Rhode Island’s interest in resolving this dispute will not be prejudiced by the dismissal of TPRI because TPRI never refined, manufactured, distributed, marketed, or sold either MTBE or gasoline containing MTBE in Rhode Island, and therefore has no connection to the allegations underlying Plaintiff’s causes of action. Ex. 1 at ¶ 3. Asserting jurisdiction over TPRI under the circumstances of this case would be unreasonable and a violation of TPRI’s due process rights. See Asahi, 480 U.S. at 115-16. (ii) TPRI Is Not Subject To General Jurisdiction Because Its Contacts With Rhode Island Do Not Render It “At Home” In The State. The general jurisdiction analysis is a stringent test allowing jurisdiction to “extend[] beyond an entity’s state of incorporation and principal place of business only in the exceptional case where its contacts with another forum are so substantial as to render it ‘at home’ in that state.” 2 Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 223 (2d Cir. 2014) (citing Daimler, 134 S. Ct. at 760-61); Federal Home Loan Bank of Boston v. Moody’s Corp., 821 F.3d 102, 106 n.2 (1st Cir. 2016); see also Cerberus Partners, 836 A.2d at 1122. Indeed, “the place of incorporation and principal place of business are ‘paradigm . . . bases for general jurisdiction’” over a corporation. Daimler, 134 S. Ct. at 760. Although the Supreme Court in Daimler did not “foreclose the possibility that in an exceptional case . . . a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial or of such a nature as to render the corporation at home in that state,” the Court plainly envisioned that only the most extraordinary case could fall within this exception. Id. at 761 n.19. Indeed, the only example of 2 In determining whether a court has general jurisdiction, the court should “examine a defendant’s contacts with the forum state over a period that is reasonable under the circumstances—up to and including the date the suit was filed.” Porina v. Marward Shipping Co., Ltd., 521 F.3d 122, 128 (2d Cir. 2008) (quoting Metro. Life, 84 F.3d at 569). The number of years a court will consider is highly fact-intensive and can range from approximately three to seven years. Helicopteros, 466 U.S. at 409-11 (considering contacts going back six years); Metro. Life, 84 F.3d at 569 (considering contacts going back six years); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1329–31 (9th Cir. 1984) (considering contacts going back three years). Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 13 of 17 PageID #: 384 -14- such a case provided by the Court involved one in which a Philippine corporation relocated its headquarters, files, and president’s office to the forum state during wartime. Id. (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447-48 (1952)). Exercising general jurisdiction over the defendant was appropriate only because the forum had become the “corporation’s principal, if temporary, place of business.” Id. at 756. In addition, the Supreme Court made clear that a company’s continuous and even extensive contacts with the forum is not enough, by itself, to render it “at home” in a forum. See id. at 761; see also Int’l Shoe, 326 U.S. at 318 (providing that 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”). The Daimler court refused to exercise general jurisdiction over Daimler, despite its extensive contacts with the forum state. Daimler, 134 S. Ct. at 761-62. Daimler, through Mercedes-Benz USA, LLC (“MBUSA”), had significant contacts with California: MBUSA “[was] the largest supplier of luxury vehicles to the California market;” “MBUSA’s California sales account[ed] for 2.4% of Daimler’s worldwide sales;” and MBUSA had “multiple” permanent facilities (and thus, likely numerous employees) in California. Id. at 764. Yet even imputing these contacts to Daimler, the Court characterized them as “slim” and insufficient to render Daimler “at home” in California. Id. at 760. TPRI’s contacts with Rhode Island do not come close to the degree of “systematic and continuous” contacts required to render it “at home” in the State. See id. at 761-62; see also Copia Commc’ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016). TPRI is a Delaware corporation headquartered in Houston, Texas. Ex. 1 at ¶ 2. Although TPRI has been qualified to conduct business in Rhode Island since 1989, this qualification alone is insufficient to establish general jurisdiction over TPRI. See Cossaboon v. Maine Med. Ctr., 600 F.3d 25, 37 Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 14 of 17 PageID #: 385 -15- (1st Cir. 2010) (finding corporate registration in state “adds some weight to the jurisdictional analysis, but it is not alone sufficient to confer general jurisdiction”). TPRI has never owned or leased any real estate in Rhode Island. Ex. 1 at ¶ 9. The single TPRI employee residing in Rhode Island worked from his home from the time period August 21, 2000 to July 31, 2014. Id. at ¶ 10. The TPRI employee did not have any involvement with MTBE-related products. Id. TPRI has never maintained any officers or directors in Rhode Island. Ex. 1 at ¶ 6. The only other contacts TPRI has ever had with Rhode Island consist of limited sales of polymers products, none of which contain MTBE or are processed with MTBE. Id. at ¶¶ 3, 11. For the time period 2011 through 2016, TPRI sold $23.4 million to $57.2 million of non-MTBE related products in Rhode Island, accounting for less than 1% of TPRI’s total yearly sales. Id. at ¶ 11. Because TPRI’s polymers sales activity is extremely limited and does not relate to the sale, use, marketing or distribution of MTBE or gasoline containing MTBE (or to any alleged ground water contamination resulting therefrom), it is an insufficient basis on which a Rhode Island court can exercise general jurisdiction over TPRI in this lawsuit. While the percentage of TPRI’s total revenues attributable to polymers sales in Rhode Island is miniscule, even sizeable sales into a state do not establish general jurisdiction. Daimler, 134 S. Ct. at 761-62 (finding that asserting general jurisdiction in every state in which a defendant’s “sales are sizeable” would be an “exorbitant exercise[]” that “would scarcely permit out-of-state defendants ‘to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’” (citing Burger King, 471 U.S. at 472)); Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 612 (5th Cir. 2008) (finding sales to the forum state for “four out of five years [that] accounted for 1.7%, 0.5%, 1.1%, and 2.5%” of defendant’s global sales did not amount to “substantial, systematic, and continuous contacts”); Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 15 of 17 PageID #: 386 -16- Harrington v. C.H. Nickerson & Co., C.A. No. 10-104-ML, 2010 WL 3385034, at *5 (D.R.I. Aug. 25, 2010) (1.4% of total revenue insufficient to confer general jurisdiction); Eon Corp. v. AT&T Mobility, LLC, 879 F. Supp. 2d 194, 203 (D.P.R. 2012) (“de minimis purchase or sales transactions between a nonresident defendant and the forum state are insufficient to establish general jurisdiction”). Because TPRI’s contacts with Rhode Island do not approach the degree of “continuous and systematic” contacts required to render a nonresident defendant “at home” in the state, TPRI is not subject to general jurisdiction in Rhode Island. See Daimler, 134 S. Ct. at 761-62; Helicopteros, 466 U.S. at 416 (finding general jurisdiction did not exist even where defendant purchased significant equipment and services from the forum state, sent its personnel to train in the forum state, and sent its CEO to negotiate in the forum state). V. CONCLUSION Plaintiff has not met its burden to establish personal jurisdiction over TPRI. Its broad- sweeping and fact-absent recitations do not meet this burden. The specific facts for TPRI—de minimis contacts that have nothing to do with Plaintiff’s allegations and alleged damages— provide no basis for general or specific jurisdiction. TPRI further submits that based on the facts presented, any attempt to amend the Complaint would be futile. Accordingly, TPRI respectfully requests that this Court issue an order dismissing Plaintiff’s Complaint against TPRI without leave to amend. Dated: January 11, 2017 Respectfully submitted, DARROWEVERETT LLP /s/ Jeffrey M. Padwa Jeffrey M. Padwa (#5130) Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 16 of 17 PageID #: 387 -17- One Turks Head Place Suite 1200 Providence, Rhode Island 02903 Telephone: (401) 453-1200 Telecopier: (401) 453-1201 jpadwa@darroweverett.com BRACEWELL LLP Amy E. Parker Pro hac vice application pending Christopher L. Dodson Pro hac vice application pending Carlton D. Wilde III Pro hac vice application pending 711 Louisiana St., Suite 2300 Houston, Texas 77002-2770 Telephone: (713) 221-1119 Telecopier: (713) 221-1212 amy.parker@bracewelllaw.com chris.dodson@bracewelllaw.com cd.wilde@bracewelllaw.com ATTORNEYS FOR DEFENDANT TOTAL PETROCHEMICALS & REFINING USA, INC. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendant Total Petrochemicals & Refining USA, Inc.’s Memorandum of Law in Support of its Motion to Dismiss for Lack of Personal Jurisdiction was served upon counsel for MDL Plaintiffs and to all other counsel of record via CM/ECF and File & ServeXpress on January 11, 2017. /s/ Jeffrey Padwa Jeffrey Padwa Case 1:16-cv-00495-S-PAS Document 81-1 Filed 01/11/17 Page 17 of 17 PageID #: 388 Case 1:16-cv-00495-S-PAS Document 81-2 Filed 01/11/17 Page 1 of 3 PageID #: 389 Case 1:16-cv-00495-S-PAS Document 81-2 Filed 01/11/17 Page 2 of 3 PageID #: 390 Case 1:16-cv-00495-S-PAS Document 81-2 Filed 01/11/17 Page 3 of 3 PageID #: 391