Vanbuskirk v. Archer Daniels Midland Company et al

MOTION to Dismiss for Lack of Jurisdiction

S.D. Ill.May 18, 2017

Case No. 3:16-CV-01371-SMY-DGW Page 1 of 10 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS MARLENE VANBUSKIRK, Individually and as Special Administrator of the Estate of MYRON VANBUSKIRK, Deceased, Plaintiff, vs. ARCHER DANIELS MIDLAND COMPANY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:16-CV-01371-SMY-DGW DEFENDANT DEMANDS TRIAL BY JURY CBS CORPORATION’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF PERSONAL JURISDICTION COMES NOW Defendant CBS Corporation (“Westinghouse”) 1 and, pursuant to Fed. R. Civ. P. 12(b)(2), moves for the dismissal of any and all claims stated against it in the above- styled civil action based on a lack of personal jurisdiction. Such relief is proper even at this stage in these proceedings as Plaintiff has failed to plead or allege specific facts which - if proven - would allow a constitutional exercise of personal jurisdiction over Westinghouse under the binding authority of Daimler AG v. Bauman, 134 S. Ct. 746 (2014). STATEMENT OF UNDISPUTED MATERIAL FACTS This civil action was filed in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, and was later removed to this Court via 28 U.S.C. § 1442(a)(1). [ECF No. 1]. Plaintiff alleges that Myron Vanbuskirk (“Mr. Vanbuskirk”) was injured from asbestos exposure while serving in the United States Navy, while working at various locations in Iowa, and while performing automotive repair work at unspecified locations. Plaintiff, however, has not pled or alleged exposure to Westinghouse-attributable asbestos in Illinois. [Complaint, ¶¶ 1-2]. It is 1 CBS Corporation (a Delaware corporation f/k/a Viacom, Inc.) is a successor by merger to CBS Corporation (a Pennsylvania corporation f/k/a Westinghouse Electric Corporation). Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 1 of 10 Page ID #2074 Case No. 3:16-CV-01371-SMY-DGW Page 2 of 10 undisputed that Westinghouse is a Delaware corporation with its principal place of business in New York. APPLICABLE STANDARDS OF REVIEW A federal district court can exercise personal jurisdiction over a non-resident defendant “only to the extent permitted by the law of the state in which the district court sits, and then only to the extent permitted by the United States Constitution.” Manley v. Premium Spray Prods., 2015 WL 1475310 at *2 (E.D. Pa. Mar. 31, 2015) (citing Fed. R. Civ. P. 4(e)). See also Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203 (11 th Cir. 2015); Dimitrov v. Nissan N.A., Inc., 2015 WL 9304490 at *1 (N.D. Ill. Sept. 22, 2015). As to the latter of those two restrictions, “[t]he Due Process Clause protects an individual‟s right to be deprived of life, liberty, or property only by the exercise of lawful power.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879 (2011). Where, as here, a challenge is raised to personal jurisdiction, the plaintiff bears the affirmative burden of establishing a basis for such jurisdiction. See, e.g., Kipp v. Ski Enterprise Corp., 783 F.3d 695, 697 (7 th Cir. 2015). Thus, while at this stage of the proceedings Plaintiff need only make a prima facie showing of a basis for personal jurisdiction with any non- controverted factual assertions deemed true, this Court must still assess whether the facts alleged by Plaintiff would in fact, if proven, support a constitutional exercise of jurisdiction. See generally Cable News Network v. Video Monitoring Servs., 723 F. Supp. 765, 766 (N.D. Ga. 1989) (citing General Elec. Credit Corp. v. Scott's Furniture Warehouse Showroom, 699 F. Supp. 907, 910 (N.D. Ga. 1988)). See also, e.g., Brown v. CBS Corp., 19 F. Supp. 3d 390, 392 (D. Conn. 2014). At least conceptually, Plaintiff must show both: 1) that her claims against Westinghouse fall within the scope of Illinois‟ long-arm statute (735 ILCS 5/2-209); and 2) that an exercise of Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 2 of 10 Page ID #2075 Case No. 3:16-CV-01371-SMY-DGW Page 3 of 10 jurisdiction over Westinghouse would not offend the due process protections afforded by both the United States and Illinois Constitutions. However, as the long-arm statute‟s “catch-all” provision (735 ILCS 5/2-209(c)) has been interpreted as authorizing the exercise of jurisdiction to the full extent constitutionally allowed, any challenge to personal jurisdiction in an Illinois- filed case ultimately turns on whether an exercise of such jurisdiction under the facts and circumstances at hand would violate either the United States or Illinois Constitution. See, e.g., Kincaid v. Synchrony Fin., 2016 WL 4245533 at *2 (N.D. Ill. Aug. 11, 2016); Denton v. Air & Liquid Sys., 2015 WL 682158 at *1 (S.D. Ill. Feb. 17, 2015). Further, and as the due process protections afforded by the Illinois Constitution equal or exceed those afforded by the United States Constitution, there is no need to assess the propriety of jurisdiction under the Illinois Constitution if it is shown that an exercise of personal jurisdiction would offend the United States Constitution. Shrum, supra. Westinghouse thus turns to the operative jurisdictional question - i.e., “Would the exercise of personal jurisdiction over Westinghouse in this case violate the due process guarantees of the United States Constitution?” In light of binding precedent, the answer to that question is “yes.” ARGUMENT The seminal case of International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) declared that a state court can only exercise personal jurisdiction over a non-resident upon a showing of certain “minimum contacts” between the non-resident and the forum state so that the exercise of jurisdiction does not offend “„traditional notions of fair play and substantial justice.‟” (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). See also Goodyear Dunlop Tires Ops. v. Brown, 564 U.S. 915, 923 (2011). Subsequent Supreme Court precedent has drawn a sharp Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 3 of 10 Page ID #2076 Case No. 3:16-CV-01371-SMY-DGW Page 4 of 10 distinction between two different types of personal jurisdiction: “specific jurisdiction” and “general jurisdiction.” See generally Goodyear, 564 U.S. at 919. The more permissive form of personal jurisdiction is specific jurisdiction, which may be exercised upon a showing that the defendant has certain “minimum contacts” with the forum state and that the plaintiff‟s claims arise from those contacts. Goodyear, 564 U.S. at 919. See also Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 414 n.8 (1984). Here, Plaintiff has not stated a claim arising from any contact between Westinghouse and Illinois in that she has not pled or alleged that Mr. Vanbuskirk‟s injury and death were caused by Westinghouse- attributable asbestos exposure in Illinois. As such, specific jurisdiction cannot be exercised over Westinghouse in this case as currently pled. Begin v. Air & Liquid Sys. Corp., 2016 WL 4543180 (S.D. Ill. Jan. 19, 2016). Compare Goodyear, 564 U.S. at 919 (observing that a North Carolina court could not exercise specific jurisdiction over a tire manufacturer as the fatal accident, as well as the manufacture and sale of the allegedly defective tires, had all occurred outside North Carolina). 2 The more restrictive form of personal jurisdiction is general jurisdiction, which may be exercised regardless of whether the claim arises from the defendant‟s contacts with the forum state if, but only if, those contacts “are so „continuous and systematic‟ as to render [it] essentially at home in the forum [s]tate.” Goodyear, 564 U.S. at 919. See also Abelesz v. OTP Bank, 692 F.3d 638, 654 (7 th Cir. 2012) (quoting Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7 th Cir. 2003) for the proposition that the required showing for general 2 This would be true even if it could be shown that Westinghouse-attributable asbestos exposure outside Illinois ultimately caused an injury or death in Illinois, and even if it could be shown that Westinghouse engaged in similar asbestos-related activities in Illinois; rather, a showing that Westinghouse‟s in-state conduct was a “but for” cause of the injury at issue would remain a predicate to any exercise of specific jurisdiction. Walden v. Fiore, 134 S. Ct. 1115, 1125 (2014); Waite v. AII Acquisition Corp., 2016 WL 2346743 at *3-5 (S.D. Fla. May 4, 2016). Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 4 of 10 Page ID #2077 Case No. 3:16-CV-01371-SMY-DGW Page 5 of 10 jurisdiction is “„considerably more stringent‟ than that required for specific jurisdiction”). Absent such circumstances, “those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts as a general matter.” J. McIntyre Mach., Ltd., 564 U.S. at 881. For an individual, the notion of being “at home” is usually non-problematic, turning on the defendant‟s domicile. Goodyear, 564 U.S. at 924. For a corporate defendant, “it is an equivalent place, one in which the corporation is fairly regarded as at home.” Id. The question of what types of contacts are needed to make a corporate defendant “at home” in a forum state was taken up in Daimler, supra. In that case, the plaintiffs brought suit against Daimler AG (“Daimler”) in California for injuries caused by a Daimler subsidiary in Argentina. While acknowledging that specific jurisdiction was not at issue, the plaintiffs urged that Daimler was “at home” in California for purposes of general jurisdiction based on the California operations of another Daimler subsidiary, presenting evidence that Daimler, through its subsidiary, operated numerous facilities in California and that a substantial portion of Daimler‟s United States and worldwide vehicle sales occurred in that state. See generally Daimler, 134 S. Ct. at 752. The Supreme Court disagreed. Rather, after undertaking an exhaustive analysis of precedent, the Daimler Court stressed that “general and specific jurisdiction have followed markedly different trajectories,” so that, while “[s]pecific jurisdiction has been cut loose from Pennoyer‟s sway,” “we have declined to stretch general jurisdiction beyond limits traditionally recognized.” Id., at 757-58. Thus, the Court held that, even if Daimler‟s subsidiary‟s California contacts were attributed to Daimler, those contacts - while “systematic and continuous” - could Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 5 of 10 Page ID #2078 Case No. 3:16-CV-01371-SMY-DGW Page 6 of 10 not support an exercise of general jurisdiction. Id., at 760-61. In so doing, the Daimler Court explained at length that: With respect to a corporation, the place of incorporation and principal place of business are “paradig[m] . . . bases for general jurisdiction. Those affiliations have the virtue of being unique - that is, each ordinarily indicates only one place - as well as easily ascertainable. These bases afford plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims. Goodyear did not hold that a corporation may be subject to general jurisdiction only in a forum where it is incorporated or has its principal place of business; it simply typed those places paradigm all-purpose forums. Plaintiffs would have us look beyond the exemplar bases Goodyear identified and approve the exercise of general jurisdiction in every State in which a corporation “engages in a substantial, continuous, and systematic course of business.” That formulation is unacceptably grasping. As noted, the words “continuous and systematic” were used in International Shoe to describe instances in which the exercise of specific jurisdiction would be appropriate. Turning to all-purpose jurisdiction, in contrast, International Shoe speaks of “instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit . . . on causes of action arising from dealings entirely distinct from those activities.” Accordingly, the inquiry under Goodyear is not whether a foreign corporation‟s in-form contacts can be said to be in some sense “continuous and systematic,” it is whether that corporation‟s “affiliations within the State are so „continuous and systematic‟ as to render [it] essentially at home in the forum State.” Id., at 760-61 (emphasis in original) (cits. and fns, including internal cits. and fns., omitted). The Daimler Court declined to hold that a corporate defendant could never be subject to general jurisdiction outside the state of its incorporation and/or its principal place of business, suggesting that such jurisdiction could perhaps be exercised in “exceptional cases.” The illustration chosen to reflect such exceptional circumstances is, however, telling. In Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 448 (1952) an Ohio court was authorized to exercise general jurisdiction over a Philippines corporation whose ordinary principal place of business was in the Philippines, but whose operational base had been effectively and temporarily Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 6 of 10 Page ID #2079 Case No. 3:16-CV-01371-SMY-DGW Page 7 of 10 relocated to Ohio due to Japanese occupation of the Philippines during World War II. As noted by the Daimler Court, under such extreme circumstances, “„Ohio was the corporation‟s principal, if temporary, place of business.‟” Daimler, 134 S. Ct. at 756 (quoting Keeton v. Hunter Magazine, Inc., 465 U.S. 770, 780 n.11 (1984)). 3 Daimler, however, is clear in holding that “[a] corporation that operates in many places can scarcely be deemed at home in all of them” as, “[o]therwise, „at home‟ would be synonymous with „doing business‟ tests framed before specific jurisdiction evolved in the United States” Id., at 761, n.19. Thus, the Supreme Court specifically rejected the notion that “„a particular quantum of local activity‟” (in that case, 10% of Daimler‟s total United States sales and the operation of permanent in-state dealerships and an in-state regional headquarters) “should give a State authority over a „far larger quantum . . . of activity‟ having no connection to any in-state activity.” Id., at 762, n.20. See also Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2d Cir. 2016); Ranza v. Nike, Inc., 793 F.3d 1059, 1070 (9 th Cir. 2015) (“the general jurisdiction inquiry examines a corporation‟s activities worldwide - not just the extent of its contacts in the forum state - to determine where it can be rightly considered at home”); Shrum v. Big Lots Stores, 2014 WL 6888446 at *6 (C.D. Ill. Dec. 8, 2014) (citing Daimler for the rule that, as to general jurisdiction, “a court must assess a corporation‟s entire activities - nationwide and worldwide - and cannot deem a corporation to be „at home‟ in every place [it operates]”). 3 As stressed in Bragg v. Johnson & Johnson, 2015 WL 4889308 at *6 (S.D.W.V. Aug. 17, 2015), Daimler‟s reference to Perkins can, perhaps, best be understood as reflecting - not that “exceptional cases” exist where general jurisdiction can be exercised over a corporation at some site other than its site of incorporation or principal place of business - but, instead, that there are “exceptional cases” where a corporation can be deemed to have more than one principal place of business. Under such a reading, a case is not rendered “exceptional” in terms of Perkins by proof of business dealings within the forum state, no matter how systematic or continuous, absent proof of activities within the forum state which are “typical of corporate headquarters.” Id. Cf. Cahen v. Toyota Motor Corp., 147 F. Supp. 2d 955, 965 (N.D. Cal. 2015) (stressing that an “exceptional case” requires more than proof of even extensive continuous and systematic in-state business, it requires evidence of facts rendering the state the defendant‟s “surrogate place of incorporation” or “temporary place of business”). Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 7 of 10 Page ID #2080 Case No. 3:16-CV-01371-SMY-DGW Page 8 of 10 In short, and consistent with this Court‟s recent holding in Perez v. Air & Liquid Sys. Corp., 2016 WL 7049153 at *4-5 (S.D. Ill. Dec. 2, 2016), simply being physically present in the forum state - and doing business in that state which is not only “systematic and continuous,” but also “sizable” - will not support a constitutional exercise of general jurisdiction over a non- domestic corporation which does an even greater amount of business outside the forum. Daimler, 134 S. Ct. at 761. See also Brown, 814 F.3d at 629 (Daimler “considerably altered the analytic landscape for general jurisdiction,” leaving little room to suggest that such jurisdiction could be justified by proof that a defendant had “contacts of substance, deliberately undertaken and of some duration” in various states including the forum); Kipp, 783 F.3d at 698 (Daimler has “raised the bar” as to the requirements of a valid exercise of general jurisdiction, so that more is now required than “the „substantial, continuous, and systematic course of business‟ that was once thought to suffice”); Hayward v. Taylor Truck Line, 2015 WL 5444787 at *5-6 (N.D. Ill. Sept. 14, 2015) (finding a lack of jurisdiction, as the plaintiffs had failed to show that the defendant - despite substantial, continuous and systematic business in Illinois - “is any more active in Illinois than in any other state [in which it does business]”); Denton, 2015 WL 682158 at *2 (general jurisdiction could not be exercised over E.I. Dupont de Nemours & Company by an Illinois court relative to an injury caused by exposure to asbestos at a DuPont facility in Texas, even though it was undisputed that DuPont owned and operated several facilities in Illinois); Shrum, 2014 WL 6888446 at *7 (holding that the defendant was not subject to general jurisdiction in Illinois even though it regularly did business in Illinois, amounting to between 4.1% and 5.2% of its total revenue). 4 4 As is often the case, the impact of Daimler is perhaps best crystallized by a dissenting voice, with Justice Sotomayor - concurring in the judgment only - noting that, under the rule of law announced in Daimler, “[t]he Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 8 of 10 Page ID #2081 Case No. 3:16-CV-01371-SMY-DGW Page 9 of 10 In this regard, it bears stressing that - even at this prima facie proof stage - the burden rests with Plaintiff; thus, it is Plaintiff’s burden to plead and show that Westinghouse‟s Illinois business, no matter how substantial if viewed in isolation, is substantially and qualitatively different from its out-of-state business; it is not Westinghouse‟s burden to plead or prove the contrary fact. See, e.g., Bonkowski v. HP Hood LLC, 2016 WL 4536868 at *2 (E.D.N.Y. Aug. 30, 2016); Kincaid, 2016 WL 4245533 at *3. In this case, Plaintiff - in addition to failing to plead or allege the type of specific facts which could trigger this Court‟s specific jurisdiction over her claims against Westinghouse - has failed to plead or allege the type of exceptional facts which, under Daimler, would be needed for a constitutional exercise of general jurisdiction over Westinghouse, a foreign corporation. Accordingly, Westinghouse‟s motion should be granted, and all claims stated against it in this case should be dismissed. 5 CONCLUSION As Plaintiff has not alleged that Mr. Vanbuskirk‟s injury and death arose out of, or relate in any way to, Westinghouse‟s activities in Illinois, there is no basis for an exercise of specific jurisdiction. Plaintiff has likewise failed to discharge her affirmative burden by pleading specific facts - which if proven - would authorize a constitutional exercise of general jurisdiction over Westinghouse. WHEREFORE, Westinghouse respectfully requests that this Court grant its Fed. R. Civ. problem . . . is not that Daimler‟s contacts with California are too few, but that its contacts with other forums are too many.” Daimler, 134 S. Ct. at 764 (Sotomayor, J., concurring). 5 As once again held by this Court in Perez, 2016 WL 7049153 at *6, Westinghouse‟s compliance with the statutory registration requirements for foreign corporations seeking to do business in Illinois does not provide a means of exercising general jurisdiction over Westinghouse which would otherwise be disallowed by Daimler under a theory of constructive or implied consent to such jurisdiction. See also, e.g., Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1245 (7 th Cir. 1990); Leibovitch v. Islamic Republic of Iran, 2016 WL 2977273 at *8 (N.D. Ill. May 19, 2016); Alderson v. Southern Co., 321 Ill. App. 3d 832, 853 (1 st Dist. 2001). Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 9 of 10 Page ID #2082 Case No. 3:16-CV-01371-SMY-DGW Page 10 of 10 P. 12(b)(2) motion to dismiss, that it dismiss Plaintiff‟s claims against Westinghouse, and that it afford Westinghouse any and all other relief deemed just and proper by this Court. Respectfully Submitted, FOLEY & MANSFIELD PLLP By: /s/ Michael R. Dauphin Michael R. Dauphin #6314608 mdauphin@foleymansfield.com 101 South Hanley Road, Suite 600 St. Louis, MO 63105 Phone: 314-925-5700 Fax: 314-925-5701 Attorneys for Defendant CBS Corporation, a Delaware corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was filed electronically with the Clerk of the Court using the CM/ECF system and is available for viewing and downloading from the CM/ECF system. The forgoing document was served upon all counsel of record via the CM/ECF system on this 18 th day of May, 2017. /s/ Michael R. Dauphin Case 3:16-cv-01371-SMY-DGW Document 74 Filed 05/18/17 Page 10 of 10 Page ID #2083