Zupancic et al v. Boeing Co. et al

MOTION to Dismiss for Lack of Jurisdiction

E.D. Pa.June 13, 2017

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JACK L. ZUPANCIC and CATHY ZUPANCIC, Plaintiffs, v. BOEING CO., et al., Defendants. Civil Action No.: 2:17-cv-01944-ER DEFENDANT LOCKHEED MARTIN CORPORATION’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR LACK OF PERSONAL JURISDICTION Defendant Lockheed Martin Corporation (“Lockheed Martin”) respectfully moves this Court, pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(i), to dismiss Plaintiffs’ Complaint for lack of personal jurisdiction. In support thereof, Lockheed Martin relies upon, and incorporates herein by reference, its Memorandum of Law filed concurrently herewith. Respectfully submitted, Dated: June 13, 2017 GLAZIER YEE LLP /s/ Laura Patricia Yee (Pro Hac Vice) Laura Patricia Yee (CA Bar #163944) 235 Montgomery Street, Suite 1003 San Francisco, CA 94104 Phone: (415) 356-1100 Dated: June 13, 2017 DICKIE, McCAMEY & CHILCOTE, P.C. /s/ William R. Adams William R. Adams (PA Bar #73534) 1650 Arch Street, Suite 2110 Philadelphia, PA 19103 Phone: (215) 925-2289 Attorneys for Defendant Lockheed Martin Corporation Case 2:17-cv-01944-ER Document 33 Filed 06/13/17 Page 1 of 2 2 CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that on July 13, 2017, Defendant Lockheed Martin Corporation’s Motion to Dismiss Plaintiff’s Complaint for Lack of Personal Jurisdiction (including supporting documents) was electronically filed with the Clerk of the Court of the United States District Court, Eastern District of Pennsylvania using the ECF system which sent notification of such filing to all counsel of record. These documents are now available for viewing and downloading from the ECF system. Dated: June 13, 2017 GLAZIER YEE LLP /s/ Laura Patricia Yee (Pro Hac Vice) Laura Patricia Yee (CA Bar #163944) 235 Montgomery Street, Suite 1003 San Francisco, CA 94104 Phone: (415) 356-1100 Case 2:17-cv-01944-ER Document 33 Filed 06/13/17 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JACK L. ZUPANCIC and CATHY ZUPANCIC, Plaintiffs, v. BOEING CO., et al., Defendants. Civil Action No.: 2:17-cv-01944-ER DEFENDANT LOCKHEED MARTIN CORPORATION’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION I. INTRODUCTION Plaintiffs Jack L. Zupancic and Cathy Zupancic (“Plaintiffs”) seek to invoke Pennsylvania jurisdiction over Lockheed Martin, a Maryland corporation, despite the absence of any facts demonstrating that Plaintiff Jack L. Zupancic (“Plaintiff”)’s alleged asbestos-related injuries arose out of any Pennsylvania-related Lockheed Martin conduct. Plaintiffs do not, and cannot in good faith, allege any facts sufficient to establish this Court’s personal jurisdiction over Lockheed Martin consistent with constitutional due process. As such, Lockheed Martin should be dismissed. II. STATEMENT OF FACTS Plaintiffs filed this lawsuit in Pennsylvania state court in March of 2017. (Plaintiffs’ Complaint (“Complaint”), attached hereto as Exhibit 1, at p. 4.) Multiple defendants, including Lockheed Martin, thereafter invoked this Court’s federal officer removal jurisdiction. (Notice of Removal [ECF No. 1] and Lockheed Martin’s Joinder in Removal [ECF No. 26].) Plaintiffs allege that, while serving in the United States military, Plaintiff was exposed to asbestos from multiple unidentified “sources.” (Complaint, at ¶¶ 5 and 6.) Plaintiffs do not allege any specific facts demonstrating that Plaintiff encountered, let alone was exposed to asbestos from, any Case 2:17-cv-01944-ER Document 33-1 Filed 06/13/17 Page 1 of 6 2 Lockheed Martin product in Pennsylvania. (Id.) Indeed, Plaintiffs do not allege any jurisdictional facts whatsoever as to Lockheed Martin. Lockheed Martin is incorporated under Maryland law and headquartered in Bethesda, Maryland. (Declaration of Dana L. Bennett [“Bennett Decl.”], attached hereto as Exhibit 2, at ¶¶ 2-3.) Lockheed Martin has derived less than 4% of its revenue from Pennsylvania activity and maintained less than 5% of its employees in Pennsylvania over the same time period. (Id. at ¶¶ 5, 6.) III. ARGUMENT A. Plaintiffs Bear The Burden Of Demonstrating Facts Sufficient To Assert Personal Jurisdiction Consistent With Constitutional Requirements When a defendant files a motion to dismiss for lack of personal jurisdiction, “a plaintiff bears the burden of proving by affidavits or other competent evidence that jurisdiction is proper.” Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996). While the plaintiff need establish only a prima facie case for personal jurisdiction, “once the defendant raises the question of personal jurisdiction, the plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction.” Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992). B. This Court Cannot Constitutionally Assert Personal Jurisdiction Over Lockheed Martin A federal district court generally applies the law of the state in which it sits for purposes of assessing personal jurisdiction. See Fed. R. Civ. P. 4(k)(1)(A). Pennsylvania’s long-arm statute authorizes Pennsylvania courts to exercise personal jurisdiction to the extent “allowed under the Constitution of the United States.” 42 Pa. Cons. Stat. § 5322(b); see also 42 Pa. Cons. Stat. § 5308 (“The tribunals of this Commonwealth may exercise jurisdiction . . . only where the contact with this Commonwealth is sufficient under the Constitution of the United States.”) (emphasis added). Accordingly, a district court sitting in Pennsylvania must inquire whether the defendant has “certain minimum contacts with [Pennsylvania] such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations and citations omitted). Non-resident defendants, such as Lockheed Martin, have a liberty interest under the United States Constitution Case 2:17-cv-01944-ER Document 33-1 Filed 06/13/17 Page 2 of 6 3 in not being subjected to the jurisdiction of Pennsylvania courts if their Pennsylvania contacts fall below the “minimum contacts” threshold enunciated by the United States Supreme Court. These basic due process principles are reflected in two distinct types of personal jurisdiction: (1) specific jurisdiction; and (2) general jurisdiction. Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014). “Specific jurisdiction is case-specific; the [plaintiff’s] claim must be linked to the [defendant’s] activities or contacts with the forum.” Id. General jurisdiction, by contrast, “is all-purpose; it exists only when the [defendant’s] affiliations with the State are so continuous and systemic as to render them essentially at home in the forum state.” Id. (internal quotation marks and citations omitted) (emphasis added). As set forth below, Plaintiffs cannot establish either specific or general jurisdiction over Lockheed Martin. 1. This Court Cannot Maintain Specific Personal Jurisdiction Over Lockheed Martin Plaintiffs cannot establish specific jurisdiction over Lockheed Martin because their allegations against Lockheed Martin bear no relation to Pennsylvania. Specific jurisdiction exists only if the injury at-issue “arises out of or relates to” the defendant’s forum-related activities. Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 414 (1984); Daimler, 134 S. Ct. at 761. Further, the “unilateral activities of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.” Helicopteros, 466 U.S. at 417; see also Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014). Here, Plaintiffs’ Complaint does not state, refer to, or otherwise identify any injury that “arises out of or relates to” any Pennsylvania-specific conduct of Lockheed Martin. On this basis alone, Plaintiffs cannot assert specific personal jurisdiction over Lockheed Martin. 2. This Court Lacks General Personal Jurisdiction Over Lockheed Martin To establish general jurisdiction, a plaintiff must show that the defendant’s contacts with the forum are “so continuous and systematic as to render them essentially at home in the forum State.” Daimler, 134 S. Ct. at 754; see also BNSF Ry. Co. v. Tyrrell, No. 16-405, 2017 WL 2322834, at *9-10 (U.S. May 30, 2017). This is an exceedingly high hurdle. In the absence of an “exceptional case,” a corporation is “at home” only in its state of incorporation or where it Case 2:17-cv-01944-ER Document 33-1 Filed 06/13/17 Page 3 of 6 4 maintains its principal place of business. Daimler, 134 S. Ct. at 760-61 n.19; BNSF, 2017 WL 2322834, at *9. In Daimler, two Argentinians filed suit in California federal court against Daimler AG, a German corporation, alleging claims under the Alien Tort Statute and Torture Victims Protection Act. Id. at 751. The plaintiffs argued that general jurisdiction over Daimler could be based on the “continuous and systematic” California contacts of Daimler’s subsidiary, Mercedes-Benz USA (“MBUSA”). Id. at 760-61. The Supreme Court assumed (without deciding) that MBUSA was “at home” in California and that the following MBUSA California contacts were imputed to Daimler: 1) “MBUSA’s California sales account[ed] for 2.4% of Daimler’s worldwide sales,” with annual sales revenue totaling $4.6 billion; 2) MBUSA had “multiple California-based facilities, including a regional office in Costa Mesa, a Vehicle Preparation Center in Carson, and a Classic Center in Irvine;” 3) MBUSA was “the largest supplier of luxury vehicles to the California market,” which accounted for over “10% of all sales of new vehicles in the United States;” and 4) MBUSA was the exclusive importer of Mercedes-Benz vehicles into the United States. Id. at 752, 758, 760. Finding these imputed California contacts insufficient to justify general jurisdiction over Daimler, the Supreme Court reaffirmed its holding in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), that “the paradigm forum for the exercise of general jurisdiction” is a corporation’s “place of incorporation and principal place of business . . . .” Daimler, 134 S. Ct. at 760. Rejecting the notion that a corporate defendant can be subject to general jurisdiction “in every State in which [it] engages in a substantial, continuous, and systematic course of business,” the Court clarified Goodyear, explaining that: the inquiry under Goodyear is not whether a foreign corporation’s in- forum contacts can be said to be in some sense continuous and systematic, it is whether the corporation’s affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State. Id. at 761 (emphasis added) (internal quotation marks and citations omitted). Case 2:17-cv-01944-ER Document 33-1 Filed 06/13/17 Page 4 of 6 5 The Court further explained that “a corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests framed before specific jurisdiction evolved in the United States.” Id. at 762 n.20. “[T]he exercise of general jurisdiction in every State in which a corporation engages in a substantial, continuous, and systematic course of business” would be “unacceptably grasping.” Id. at 761 (internal quotations omitted) (emphasis added).1 Simply put, “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 Machinery, Ltd., v. Nicastro, 564 U.S. 873, 881 (2011) (emphasis added). Since the Supreme Court issued Daimler, the Third Circuit has recognized the stringent standard for asserting all-purpose jurisdiction, noting that “it is incredibly difficult to establish general jurisdiction over a corporation in a forum other than the place of incorporation or principal place of business.” Chavez v. Dole Food Company, Inc., 836 F.3d 205, 223 (3d Cir. 2016) (emphasis in original) (holding that a defendant is not “at home” in Delaware when Delaware is not the defendant’s place of incorporation or principal place of business). Here too, Lockheed Martin neither is incorporated in Pennsylvania nor has its principal place of business in Pennsylvania. (Bennett Decl., at ¶¶ 2-3.) Rather, Lockheed Martin’s corporate home is Maryland, the jurisdiction in which it is both incorporated and headquartered. (Id.) Indeed, Lockheed Martin derives only a tiny fraction of its total revenue (between approximately 1.7% and 3.1%) from Pennsylvania activity. (Bennett Decl., at ¶ 5.) In Daimler, the defendant’s California revenue totaling 2.4% of its annual worldwide sales “plainly [did] not approach [the] level” for imposing general jurisdiction. Daimler, 134 S. Ct. at 761 n.19. 1 As an example of the “exceptional” case in which a defendant could be subject to general jurisdiction other than in its “formal place of incorporation or principal place of business,” the Supreme Court cited the only case in which it ever has upheld the exercise of general jurisdiction: Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952). Daimler, 134 S. Ct. at 755-56, 761 n.19. In Perkins, as explained in Daimler, the defendant corporation temporarily relocated from its Philippine headquarters to Ohio during World War II. Id. at 756. “Ohio was the corporation’s principal, if temporary, place of business.” Id. “Given the wartime circumstances [in Perkins], Ohio could be considered a surrogate for the place of incorporation or head office.” Id. at 756 n.8 (internal quotation marks and citations omitted) (emphasis added). Thus, when a defendant’s formal place of incorporation or principal place of business is not (or no longer remains) the actual place of incorporation or principal place of business, courts may substitute an informal, “surrogate” corporate home. See id. at 756. The unique circumstances of Perkins are wholly absent here. Maryland remains Lockheed Martin’s corporate home. Case 2:17-cv-01944-ER Document 33-1 Filed 06/13/17 Page 5 of 6 6 Lockheed Martin’s fraction of Pennsylvania-related revenue is comparable to, or less than, the proportionate revenue deemed “plainly” insufficient to warrant general jurisdiction in Daimler. Likewise, the proportion of Lockheed Martin employees based in Pennsylvania ranged between approximately 2.5% and 4.9% of the total number of Lockheed Martin employees in each year between 2012 and 2016, inclusive. (Bennett Decl., at ¶ 6.) Accordingly, just as there is no basis for specific jurisdiction over Lockheed Martin, there is no constitutional basis for subjecting Lockheed Martin to general personal jurisdiction in Pennsylvania. Plaintiffs do not, and cannot in good faith, allege otherwise. IV. CONCLUSION For the reasons set forth above, Lockheed Martin respectfully requests that this Court grant its motion to dismiss for lack of personal jurisdiction. Respectfully submitted, Dated: June 13, 2017 GLAZIER YEE LLP /s/ Laura Patricia Yee (Pro Hac Vice) Laura Patricia Yee (CA Bar #163944) 235 Montgomery Street, Suite 1003 San Francisco, CA 94104 Phone: (415) 356-1100 Dated: June 13, 2017 DICKIE, McCAMEY & CHILCOTE, P.C. /s/ William R. Adams William R. Adams (PA Bar #73534) 1650 Arch Street, Suite 2110 Philadelphia, PA 19103 Phone: (215) 925-2289 Attorneys for Defendant Lockheed Martin Corporation Case 2:17-cv-01944-ER Document 33-1 Filed 06/13/17 Page 6 of 6 Exhibit 1 Case 2:17-cv-01944-ER Document 33-2 Filed 06/13/17 Page 1 of 5 WEITZ & LUXENBERG A New York Professional Corporation By: Kevin Mulderlg 10: 48595 220 Lake Drive East, SuilO 21 0 Cherry Hill, N1 08002 (856)755-11 IS JACK L ZUPANCIC and CATHY ZUPANIC : 74 N Saunders Rd i Greene, ME 04236 ! Plnintiff(s) vs, OWENS ILLINOIS, INC" et a1 Defendants, i ! :, i ,I " " " " il ~ Attorneys for Plaintiff(s) COURT OF COMMON PLEAS PHILADELPHIA COUNTY TERM 2017 NO, ASBESTOS CASE JURY nuAL DEMANDED CIVIL ACTION COMPLAINT Plaintiff{s) incorporate by refe~ence Plaintiffs Mater Long Form Complaint In re: Asbestos Litigation in Philadelphia County Court of Common Pleas, filed as of October Teno 1986, No, 8610-0001. Pursuant to an Order dated 1uly 30,1986, and signed by the Honorable Richard B. Klein, the following Short Form Complaint is utilized in this asbestos action. 1. This Complaint inVolves the claims of the following pcrson(s): a. Plaintiff: Name: JACK L ZUPANCIC Address: 74 N Saunders Rd Greene, ME 04236 Social Security Number: xxx-lOt-4676 Redacted Date at' Birth: 1939 b, Plaintiff-spouse: Name: CAnrYLZUPANIC Address: 74 N Saunders Rd Greene, ME 04236 Redacted Social Security Number: xxx-xx-134 I Ootc of Bii1h: 1947 CaseID: 170301697 Case 2:17-cv-01944-ER Document 33-2 Filed 06/13/17 Page 2 of 5 2. The Defendants are those companies listed in the caption. 3. Plaintiff(s) mig1!t have named as dorendllllls other additional entitles responsible for the manufacture, distribution andlor supply of products that contained asbestos, except that such other entities have petitioned for relief in bankruptcy under the United States Bankruptcy Code and, pUrsUllllt to federal statute, the institution of actions against these entities is stayed. 4. Plaintiff(s) hereby Incorporate by ",rerence the followIng Collnts from the Master Long Form Complaint: Counts 1 through X. 5. Plaintiff(s) asbestos employment history is as follows: SHIP: USS WASP (CV-18, BOSTON MA 01/1968 1211971 AIRCRAFT RooSEVEL,T ROADS ROOSEVELT PR 0711971 0711975 AIRCRAFT NAVAL AIR STATION ' , QUONSET POINT R[ 05/1962 01/1963 AIRCRAFT BRUNSWICK NA VAL AIR BRUNSW[CK ME 06/1957 08/1961 AIRCRAFT BOCA CHICA NAVAL AIR BOCACHICA FL 1011961 04/1962 AIRCRAFT 74 N. SAUNDERS ROA1;l GREENE ME . 0111979 12/199,0 AUTO NORTH AMERlCAN PHILIPS LEWISTON ME 0111979 1211982 MACHINIST NAVAL AIR FAC[LITY NAPLES 0811975 1211978 AIRCRAFT 6. Plaintiffwes diagnosed on August 2, 2016 at Brigham &. Womens Hospital as having Mesotheliome whleh is the direct and proximate result of his exposure to asbestos dust and fibers from any and all sources. 7. Plaintiff's smoking history: Plaintiffsmoked approximately [.5 packs per day from 1956 to 1985. 8. Plaintiff's wages during his full year of employment were: B. To be supplied if applicable. WEITZ & LUXENBERG, P.C. '""7;'--;' By: ~ MUld~g-l-: - _-. '--- CaselD: 170301697 Case 2:17-cv-01944-ER Document 33-2 Filed 06/13/17 Page 3 of 5 VERIFICATION 1, Kevin Mulderig, attorney for Plaintifi{s), verify that the facts set forth in the foregoing are true IUld correct to the best of my info.rmation, Imowledge and belief. 1 understand that the statements contained herein are subject to the penalties of 18 PA C.S.A. Sec. 4904 relating to unsworn falsifi(l!!l,ion to . i1t1ic(' filS. Daled: 8 !IU ('7 . Case ID: 170301697 Case 2:17-cv-01944-ER Document 33-2 Filed 06/13/17 Page 4 of 5 CERTIFICATION I, Kevin Mulderig, attorney for the Plalntiff{s), certifies pur.ruant to Pennsylvania Rule No. 205.4 that the hard copy of this electronically filed document was properly signed. Dated: ;J ((UI17 . ~.--~ ill Case ID: 170301697 Case 2:17-cv-01944-ER Document 33-2 Filed 06/13/17 Page 5 of 5 Exhibit 2 Case 2:17-cv-01944-ER Document 33-3 Filed 06/13/17 Page 1 of 3 UNITED STATES DISTRICT COURT FOR TIlE EASTERN DISTRICT OF PENNSYLVANIA JACK L ZUPANCIC and CATHY ZUPANCIC, Civil Action No.: 2:I7-cv-01944-ER Plaintiffs, v. BOEING CO., et aI., Defendants. DECLARATION OF DANA L. BENNETT IN SUPPORT OF DEFENDANT LOCKHEED MARTIN CORPORATION'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION I, Dana L Bennett, declare as follows: 1. I am an Assistant Corporate Secretary of Lockheed Martin Corporation. am over the age of eighteen (18) years. I have personal knowledge of the facts contained in this declaration. I collected the data contained in this declaration from information contained in Lockheed Martin internal and publicly filed records. Lockheed Martin personnel, knowledgeable about the subject mailer of this information, recorded this information at or near the time of the events recorded. Lockheed Martin personnel rely upon the information recorded and the documents recording the information in the regular course of carrying out their duties. I could and would competently testify to the facts herein if called upon to do so. 2. Lockheed Martin is incorporated and headquartered in the State of Maryland. 3. All of Lockheed Martin's activities are directed by and controlled from its headquarters in Bethesda, Maryland. 4. In addition to its headquarters in Bethesda, Maryland, Lockheed Martin is composed of four business areas, headquartered and led by one of its Executive Vice Presidents as follows: Rotary and Mission Systems in Manassas, Virginia; Aeronautics Case 2:17-cv-01944-ER Document 33-3 Filed 06/13/17 Page 2 of 3 in Fort Worth, Texas; Missiles and Fire Control in Dallas, Texas; and Space Systems in Denver, Colorado. 5. For the period between 2011 and 2015, which is the most current five-year period for which state-specific revenue data are available, the proportion of Lockheed Martin's revenue derived from work perfonned in Pennsylvanill ranged between approximately 1.7% and 3.1% of Lockheed Martin's total revenue in each year of the five-year period. Lockheed Martin has conducted no activity in 2016 or 2017 that would have resulted in Pennsylvania revenue numbers outside of this approximate range. 6. For the period between 2012 and 2016, which is the most current five- year period for which state-specific employee data are available, the proportion of Lockheed Martin employees based in Pennsylvania rdnged between approximately 2.5% and 4.9% of the total number of Lockheed Martin employees in each year of the five-year period. Lockheed Martin has conducted no activity in 2017 that would result in Pennsylvania employee numbers outside of this approximate mnge. I declare under penalty of perjury under the laws of lhe United States of America that the foregoing is true and correct, and that I executed this declaration on June L 2017, at Bethesda, Maryland. 1b4 i~ Dana L. Bennett 2 Case 2:17-cv-01944-ER Document 33-3 Filed 06/13/17 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JACK L. ZUPANCIC and CATHY ZUPANCIC, Plaintiffs, v. BOEING CO., et al., Defendants. Civil Action No.: 2:17-cv-01944-ER ORDER Upon consideration of Defendant Lockheed Martin Corporation’s Motion to Dismiss Plaintiffs’ Complaint for Lack of Personal Jurisdiction, including all documents filed in support of said Motion and in response thereto, it is hereby ordered that said Motion is GRANTED. Defendant Lockheed Martin Corporation is DISMISSED. Dated: BY THE COURT: _________________________________ J. . Case 2:17-cv-01944-ER Document 33-4 Filed 06/13/17 Page 1 of 1