Williams et al v. Rust Engineering & Construction, Inc. et al

MOTION to Dismiss for Lack of Jurisdiction

E.D. La.September 13, 2016

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BRECK WILLIAMS AND * TARSIA WILLIAMS * CIVIL ACTION NO.: 2:16-cv-13136 * VERSUS * * RUST ENGINEERING AND * JUDGE JANE TRICHE MILAZZO CONSTRUCTION, INC., * (AS SUCCESSOR TO THE RUST * ENGINEERING COMPANY AND * MAGISTRATE JUDGE JOSEPH C. MASON RUST) AND GLOBAL * WILKINSON, JR. ASSOCIATES, (A JOINT VENTURE * COMPOSED OF ATLAS * CORPORATION AND OWL * CONSTRUCTORS COMPANY) AND * FIAT SPA (AS SUCCESSOR TO * JURY TRIAL DAIMLERCHRYSLER AG AND * THE CHRYSLER CORPORATION) * ****************************************************************************** MOTION TO DISMISS NOW INTO COURT through undersigned counsel comes specially appearing Fiat Chrysler Automobiles N.V., successor by merger to Fiat S.p.A. (hereinafter “Fiat Chrysler Netherlands”), and pursuant to Federal Rule of Civil Procedure 12 requests that this Court dismiss all claims asserted by Plaintiffs, Breck Williams and Tarsia Williams (hereinafter “Plaintiffs”), against improperly named defendant “Fiat S.P.A. (as successor to DaimlerChrysler AG and The Chrysler Corporation).” In this wrongful death lawsuit Plaintiffs, the adult children of the deceased Frank Williams, seek to recover damages arising out of Frank Williams’ alleged occupational exposure to asbestos at the NASA Michoud Assembly Facility (“MAF”) in Louisiana from 1966 through 1968. This Court lacks jurisdiction over Fiat S.p.A., a former Italian company whose headquarters were located in Turin, Italy before it was merged out of existence in 2014. Similarly, this Court lacks jurisdiction over Fiat S.p.A.’s successor by Case 2:16-cv-13136-JTM-JCW Document 9 Filed 09/13/16 Page 1 of 3 2 merger, specially appearing Fiat Chrysler Netherlands, which is incorporated and organized under the laws of the Netherlands, and whose headquarters are located in London, United Kingdom. Neither entity had contacts sufficient wih Louisiana to establish jurisdiction within this Court. Accordingly, Plaintiffs’ claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Additionally, and without waiving any objection to jurisdiction, movant submits that Plaintiffs’ claims against improperly named defendat Fiat S.p.A. should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) because Plaintiffs’ delivery of the Complaint to Fiat Chrysler Netherlands’ branch office in Turin, Italy is insufficient service of process under the Hague Convention. For all of these reasons, which are discussed more fully in the Memorandum in Support filed herewith, specially appearing Fiat Chrysler Netherlands requests that this Court grant this Motion to Dismiss, thereby dismissing, with prejudice, all claims asserted against improperly named defendant Fiat S.p.A. in the captioned matter. Respectfully submitted, /s Deirdre McGlinchey DEIRDRE C. McGLINCHEY (24167) (T.A.) dmcglinchey@mcglinchey.com MARSHALL T. COX (36423) mcox@mcglinchey.com McGlinchey Stafford, PLLC 601 Poydras Street, 12th Floor New Orleans, Louisiana 70130 Telephone (504) 586-1200 Facsimile (504) 596-2800 ATTORNEYS FOR SPECIALLY APPEARING FIAT CHRYSLER AUTOMOBILES N.V., SUCCESSOR BY MERGER TO FIAT S.p.A. Case 2:16-cv-13136-JTM-JCW Document 9 Filed 09/13/16 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on this September 13, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. A Notice of Electronic Filing will be sent by the Court to all counsel of record who have consented to email notification and electronic service. This document is available for viewing and downloading from the Court’s ECF system. /s Deirdre McGlinchey DEIRDRE McGLINCHEY Case 2:16-cv-13136-JTM-JCW Document 9 Filed 09/13/16 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BRECK WILLIAMS AND * TARSIA WILLIAMS * CIVIL ACTION NO.: 2:16-cv-13136 * VERSUS * * RUST ENGINEERING AND * JUDGE JANE TRICHE MILAZZO CONSTRUCTION, INC., * (AS SUCCESSOR TO THE RUST * ENGINEERING COMPANY AND * MASON RUST) AND GLOBAL * MAGISTRATE JUDGE JOSEPH C . ASSOCIATES, (A JOINT VENTURE * WILKINSON, JR. COMPOSED OF ATLAS * CORPORATION AND OWL * CONSTRUCTORS COMPANY) AND * FIAT SPA (AS SUCCESSOR TO * JURY TRIAL DAIMLER CHRYSLER AG AND * THE CHRYSLER CORPORATION) * *************************************************** *************************** MEMORANDUM IN SUPPORT OF MOTION TO DISMISS MAY IT PLEASE THE COURT: On June 2, 2016, Plaintiffs, Breck Williams and Tarsi Williams (“Plaintiffs”), the adult children of deceased Frank Williams (“Decedent”), filed this lawsuit in the Civil District Court for the Parish of Orleans, Louisiana seeking to recv r damages arising out of the death of Frank Williams allegedly caused by his occupational exposure to asbestos. 1 This matter was removed to this Court on July 22, 2016.2 In the instant wrongful death lawsuit, Plaintiffs claim Frank Williams’ occupational exposure to asbestos at NASA’s Michoud Assembly Facility (“MAF”), located in eastern New Orleans caused him to develop mesothelioma from which he died in 1 A separate but related lawsuit filed against at le st thirteen other defendants arising out of Frank Williams’ alleged occupational exposure to asbestos was filed ov r seven years ago, and is currently pending in the United States District Court, Eastern District of Louisiana, bearing Civil Action No. 09-65. A December 5, 2016, trial is scheduled in that matter. 2 Rec. Doc. 1. Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 1 of 9 2 January 2009.3 Specifically, Plaintiffs contend that Mr. Williams was exposed to asbestos while employed by Chrysler Corporation as an engineer at the MAF premises4 from 1966 through 1968.5 Plaintiffs also claim Mr. Williams was exposed to asbestos at MAF while employed by Lockheed Martin Company as a mechanical engineer between 1974 and 1993.6 According to the Complaint, Mr. Williams was allegedly exposed to airborne asbestos fibers from degrading asbestos pipe insulation, crumbling asbestos cement board in air- conditioning ducts, and asbestos abatement work conducted overhead in the office building in which he worked at MAF.7 Among other allegations, Plaintiffs contend that the defendants had a responsibility to provide proper safety equipment, housekeeping, hygiene, and other precautions to ensure MAF building occupants like Frank Williams would not be exposed to asbestos.8 The instant lawsuit names three separate entities as defendants: two of which (Rust Engineering and Global Associates) are alleged to be contractors at MAF, and one of which (Fiat S.p.A.) is alleged to be the successor to Chrysler Corporation, Mr. Williams’ employer at MAF between 1966 and 1968.9 In a misguided effort to target Mr. Williams’ allegd former employer, Chrysler Corporation, Plaintiffs have improperly identified as a defendant “Fiat S.P.A. (as successor to DaimlerChrysler AG and The Chrysler Corporation)” and attempted to serve a copy of the Complaint on Fiat S.p.A.’s successor by merger, Fiat Chrysler Automobiles, N.V. at its branch 3 Rec. Doc. 1-1 ¶¶ 3, 7-8. 4 NASA acquired the MAF premises in 1961 for use in the design and assembly of space transportation vehicles. During Mr. Williams’s alleged employment with Chrysler Corporation at MAF in the 1960s, MAF produced Saturn rocket boosters for NASA’s Apollo program. Upon information and belief, at no time were automobiles ever designed, tested, or built at MAF. https://mafspace.msfc.nasa.gov/history-maf. 5 Rec. Doc. 1-1. 6 Id. 7 Id. 8 Id. 9 Id. Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 2 of 9 3 office in Turin, Italy. As more fully explained below, Plaintiffs’ claims against Fiat S.p.A. are ripe for dismissal on several grounds pursuant to Federal Rule of Civil Procedure 12. LAW AND ARGUMENT I. Plaintiffs’ Claims against Fiat S.p.A. Should be Dismissed for Lack of Personal Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(2). A plaintiff “seeking to invoke the court’s power” bears the burden of presenting prima facie evidence of the court’s personal jurisdiction over the defendant. See First Inv. Corp. of Marshall Islands v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 746 (5th Cir. 2012) (citation omitted) (granting motion to dismiss for lack of personal jurisdiction). A federal court may exercise personal jurisdiction over a foreign defendant if (1) the long-arm statute of the forum state confers personal jurisdiction over the defendant, and (2) the exercise of such jurisdiction comports with due process under the Constitution. See Electrosource, Inc. v. Horizon Battery Techs., Ltd., 176 F.3d 867, 871 (5th Cir. 1999). “The limits of the Louisiana long-arm statute are coextensive with constitutional due process limits. Therefore, the inquiry is whether jurisdiction comports with federal constitutional guarantees.” Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 584 (5th Cir. 2010) (citation omitted). For personal jurisdiction over a defendant to satisfy due process, (1) the defendant must have purposely availed itself of the benefits and protections of the forum state by establishing minium contacts; and (2) the exercise of jurisdiction over the defendant must not offend traditional notions of fair play and substantial justice. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Additionally, a defendant’s minimum contacts with the forum state may be “general” or “specific.” Cent. Freight Lines, Inc. v. APA Transp. Corp., 322 F.3d 376, 380 (5th Cir. 2003) (citation omitted). The inquiry into general jurisd ction is “dispute blind, the sole focus being on whether there are continuous and systematic contacts between the defendant and the forum” Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 3 of 9 4 sufficient to give the court jurisdiction over a defendant in suits unrelated to its forum activities. Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 339 (5th Cir. 1999) (citation omitted). In order for the court to have specific jurisdiction, (1) the defendant must have purposely availed itself of the privilege of conducting forum state activities; and (2) the litigation must result from alleged injuries arising out of, or related to those activities. See Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000). Here, Plaintiffs have not and cannot present evidence sufficient to establish either general or specific jurisdiction over Fiat S.p.A., a former Italian company which was merged out of existence in 2014. As evidenced by the attached Declaration of Mr. Giorgio Fossati, General Counsel for Fiat S.p.A.’s successor by merger, FiatChrysler Automobiles, N.V. (hereinafter “Fiat Chrysler Netherlands”), at no time did Fiat S.p.A. have contacts with Louisiana sufficient to establish jurisdiction by this Court. Before it was merged out of existence, Fiat S.p.A. was incorporated as a joint-stock company (societa per azioni) in Italy, pursuant to the laws of Italy, with its headquarters in Turin, Italy.10 During the relevant time period of 1966 - 1968 (hereinafter “Relevant Time Period”), Fiat S.p.A. designed and manufactured Fiat brand motor vehicles in Italy and nowhere in Louisiana or the United States of America.11 During the Relevant Time Period, Fiat S.p.A. did not have any directors, officers, employees, or agents in Louisiana; did not conduct business in Louisiana; did not maintain a Louisiana bank account; did not own or possess any Louisiana real estate, or pay Louisiana taxes; and did not consent to jurisdiction or appoint an agent for service of process in Louisiana.12 During the Relevant Time Period, Fiat S.p.A. did not distribute Fiat brand vehicles to dealers or to the general public in 10 Declaration of Giorgio Fossati ¶ 6, attached as Exhibit A. 11 Id. ¶ 7, Ex. A. 12 Id. ¶¶ 9-10, 12, Ex. A. Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 4 of 9 5 Louisiana, conduct advertising or solicitation activities in Louisiana, operate any sales or service network in Louisiana, or otherwise have any connections to Louisiana.13 In 1979, Fiat S.p.A.’s Fiat Brand automotive production activities were spun off into Fiat Auto S.p.A.14 At that time, and through the time of its merger with Fiat Chrysler Netherlands in 2014, Fiat S.p.A. operated solely as a holding company and, as such, it had no sales or production.15 Fiat S.p.A. did not design, test, engineer, manufct re, market, sell, or distribute any vehicles.16 Its activities then consisted primarily of ownership interests in other entities, certain finance functions, executive management functio s, approval of major strategic transactions, managing relationships with public share olders, issuing and receiving dividends, paying taxes, and supporting legal functions.17 Fiat S.p.A. did not direct or control the day-to- day business activities of Fiat Auto S.p.A. or any other of its operating subsidiaries.18 On October 12, 2014, Fiat S.p.A. was merged into successor Fiat Chrysler Netherlands.19 Similarly, this Court lacks jurisdiction over Fiat S.p.A.’s successor by merger, specially appearing Fiat Chrysler Netherlands because Fiat Chrysler Netherlands simply does not maintain “continuous and systematic contacts” with Louisiana. See Dickson Marine, 179 F.3d at 339. Fiat Chrysler Netherlands was incorporated as a public limited liability company (naamloze vennotschap) pursuant to the laws of the Netherlands on April 1, 2014, and it is headquartered in London, United Kingdom.20 Since its inception, Fiat Chrysler Netherlands has operated solely as a holding company for multiple subsidiaries and, as such, it has no sales or production and does 13 Id. ¶ 11, 14, Ex. A. 14 Id. ¶ 13, Ex. A. 15 Id., Ex. A. 16 Id., Ex. A. 17 Id., Ex. A. 18 Id., Ex. A. 19 Id., Ex. A. 20 Id. ¶ 4, Ex. A. Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 5 of 9 6 not design, test, engineer, manufacture, market, sell, or distribute any vehicles.21 Rather, Fiat Chrysler Netherlands’ activities consist primarily of ownership interests in other entities, certain finance functions, executive management functions, approval of major strategic transactions, managing relationships with public shareholders, isuing and receiving dividends, paying taxes, and supporting legal functions.22 It does not direct or control the day-to-day busine s activities of its operating subsidiaries.23 Specially appearing Fiat Chrysler Netherlands simply has no connection to the State of Louisiana.24 It does not conduct business in Louisiana; has not appointed an agent for service of process in Louisiana; does not conduct advertising or solicitation activities in Louisiana; and does not operate any sales or service network in Louisiana.25 Fiat Chrysler Netherlands does not have any directors, officers, employees, or agents residing in Louisiana; does not have a Louisiana bank account; does not own, use, or possess any Louisiana real estate; and does not pay Louisiana taxes.26 It does not expected to be haled into court in Louisiana, and defending this case would be burdensome for Fiat Chrysler Netherlands because of the language differences, the distance involved, and the lack of familiarity with the laws of Louisiana.27 Given this burden, Fiat Chrysler Netherlands does not consent to being sued in either Louisiana state or federal courts in connection with this lawsuit.28 Considering the facts and circumstances surrounding F at S.p.A. and its successor by merger, Fiat Chrysler Netherlands - which are establi hed by the attestations of Mr. Giorgio Fossati in his attached Declaration - this Court simply lacks jurisdiction over Fiat S.p.A. and 21 Id. ¶ 15, Ex. A. 22 Id., Ex. A. 23 Id., Ex. A. 24 Id. ¶ 19, Ex. A. 25 Id. ¶ 16, Ex. A. 26 Id. ¶¶ 17-18, Ex. A. 27 Id. ¶ 20, Ex. A. 28 Id. ¶ 21, Ex. A. Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 6 of 9 7 specially appearing Fiat Chrysler Netherlands. Accordingly, Plaintiffs’ against Fiat S.p.A. and any claims against its successor by merger, Fiat Chrysler Netherlands should be dismissed in their entirety, with prejudice, pursuant to Fed. R. Civ. P. 12(b)(2). II. Plaintiffs’ Claims against Fiat S.p.A. Should be Dismissed Pursuant to Federal Rule of Civil Procedure 12(b)(5) for Insufficient Service of Process. Under the Federal Rules of Civil Procedure, a foreign corporation served outside of the United States must be served according to an “interna ionally agreed means of service,” such as those authorized by the Hague Convention. Fed. R. Civ. P. 4(f), (h)(2). The United States, the United Kingdom, and the Netherlands are signatories to the Hague Convention. Use of Hague Convention procedures “is mandatory if the documents must be transmitted abroad to effect service.” Am. River Transp. Co. v. M/V BOW LION, 2004 WL 764181, at *2 (E.D. La. 2004) (citing Volkswagenwerk Aktiengesekkschaft v. Schlunk, 486 U.S. 694 (1998)). Under the Hague Convention, along with the documents themselves, a request, certificate, and summary of the documents being served are to be provided to the designated Central Authority in the country where service is to occur. Hague Convention arts. 3, 5-6. Upon completing the requested service, the Central Authority is required to return the certificate indicating service was completed in accordance with the Hague Convention drectly to the party requesting service. Hague Convention art. 6; see also N. Shore. Reg’l Med. Ctr., L.L.C. v. Dill, 2012-0850 (La. App. 1 Cir. 3/22/13), 115 So. 3d 475, 481. Here, Plaintiffs have not submitted a certificate from the Central Authority of the Netherlands or United Kingdom certifying that service was accomplished on Fiat Chrysler Netherlands in accordance with the Hague Convention. Rather, in July 2016, Plaintiffs attempted to serve Fiat S.p.A., which has been merged out of existence, by arranging for the delivery of the Complaint to a branch office of Fiat Chrysler Netherlands in Turin, Italy. Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 7 of 9 8 Plaintiffs attempted Hague Convention service on Fiat S.p.A. in Italy through the Italian Central Authority is improper and should be quashed.29 There is simply no apparent support in the text of the Hague Convention or in related American case l w for the proposition that a foreign business entity like Fiat Chrysler Netherlands may be properly served in a country in which one of its branch offices happens to be located, but in which it is neither incorporated nor headquartered. Therefore, Plaintiffs’ delivery of the Complaint to a branch office of Fiat Chrysler Netherlands in Italy constitutes insufficient service of process, and Plaintiffs’ claims should be dismissed pursuant to Rule 12(b)(5) and any such purported service quashed. CONCLUSION For all of the reasons discussed above, specially appearing Fiat Chrysler Automobiles, N.V., successor in interest to Fiat S.p.A., respectfully requests that all claims asserted by Plaintiffs in the captioned matter against improperly named defendant, Fiat S.p.A. be dismissed, with prejudice, pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5). Respectfully submitted, /s/ Deirdre McGlinchey DEIRDRE C. McGLINCHEY (24167) (T.A.) dmcglinchey@mcglinchey.com MARSHALL T. COX (36423) mcox@mcglinchey.com McGlinchey Stafford, PLLC 601 Poydras Street, 12th Floor New Orleans, Louisiana 70130 Telephone (504) 586-1200 Facsimile (504) 596-2800 ATTORNEYS FOR FIAT CHRYSLER AUTOMOBILES N.V., SUCCESSOR BY MERGER TO FIAT S.p.A. 29 Plaintiffs have not filed any certificate from the Italian Central Authority either. Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 8 of 9 9 CERTIFICATE OF SERVICE I hereby certify that on this September 13, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. A Notice of Electronic Filing will be sent by the Court to all counsel of record who have consented to email notification and electronic service. This document is available for viewing and downloading from the Court’s ECF system. /s/ Deirdre McGlinchey DEIRDRE McGLINCHEY Case 2:16-cv-13136-JTM-JCW Document 9-1 Filed 09/13/16 Page 9 of 9 Exhibit "A" Case 2:16-cv-13136-JTM-JCW Document 9-2 Filed 09/13/16 Page 1 of 3 Exhibit "A" Case 2:16-cv-13136-JTM-JCW Document 9-2 Filed 09/13/16 Page 2 of 3 Exhibit "A" Case 2:16-cv-13136-JTM-JCW Document 9-2 Filed 09/13/16 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BRECK WILLIAMS AND * TARSIA WILLIAMS * CIVIL ACTION NO.: 2:16-cv-13136 * VERSUS * * RUST ENGINEERING AND * JUDGE JANE TRICHE MILAZZO CONSTRUCTION, INC., * (AS SUCCESSOR TO THE RUST * ENGINEERING COMPANY AND * MAGISTRATE JUDGE JOSEPH C. MASON RUST) AND GLOBAL * WILKINSON, JR. ASSOCIATES, (A JOINT VENTURE * COMPOSED OF ATLAS * CORPORATION AND OWL * CONSTRUCTORS COMPANY) AND * FIAT SPA (AS SUCCESSOR TO * JURY TRIAL DAIMLERCHRYSLER AG AND * THE CHRYSLER CORPORATION) * ****************************************************************************** NOTICE OF SUBMISSION PLEASE TAKE NOTICE that specially appearing Fiat Chrysler Automobiles N.V., successor by merger to Fiat S.p.A. will bring for hearing the accompanying Motion to Dismiss on the 5th day of October, 2016, at 9:30 a.m., before the Honorable Judge Milazzo of the United States District Court for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, LA 70130. Respectfully submitted, this 13th day of September, 2016. /s/ Deirdre McGlinchey DEIRDRE C. McGLINCHEY (24167) (T.A.) dmcglinchey@mcglinchey.com MARSHALL T. COX (36423) mcox@mcglinchey.com McGlinchey Stafford, PLLC 601 Poydras Street, 12th Floor New Orleans, Louisiana 70130 Telephone (504) 586-1200 ATTORNEYS FOR SPECIALLY APPEARING FIAT CHRYSLER AUTOMOBILES N.V., SUCCESSOR BY MERGER TO FIAT S.p.A. Case 2:16-cv-13136-JTM-JCW Document 9-3 Filed 09/13/16 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that on this September 13, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system. A Notice of Electronic Filing will be sent by the Court to all counsel of record who have consented to email notification and electronic service. This document is available for viewing and downloading from the Court’s ECF system. /s/ Deirdre McGlinchey DEIRDRE McGLINCHEY Case 2:16-cv-13136-JTM-JCW Document 9-3 Filed 09/13/16 Page 2 of 2