Kimmons et al v. AutoZone Inc et al

Filing 97

ORDER granting 66 Cyprus AMAX Minerals Company's Motion to Dismiss for Lack of Personal Jurisdiction. Signed by Judge Lee P. Rudofsky on 09/15/2020. (ajt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
THOMAS KIMMONS and
GICELIA SWOPES

PLAINTIFFS

v.

Case No. 4:19-cv-00876-LPR

AUTOZONE, INC., et al.

DEFENDANTS
ORDER

Before the Court is Defendant Cyprus AMAX Minerals Company’s (“CAMC”) Motion to
Dismiss for Lack of Personal Jurisdiction.1 For the reasons discussed below, the Motion to
Dismiss is GRANTED.
Plaintiffs sued CAMC “individually, doing business as, and as successor to American Talc
Company, Metropolitan Talc Co. Inc. and Charles Mathieu Inc. and Sierra Talc Company and
United Talc Company.”2 CAMC asserts that it is not subject to jurisdiction in Arkansas because:
CAMC is not registered to conduct business in Arkansas, and has no agents for
service of process in Arkansas. . . . CAMC has no business operations in Arkansas,
owns no property in Arkansas, pays no taxes in Arkansas, and employs no one in
Arkansas. . . . CAMC has never mined, milled, or sold talc in Arkansas. . . .3
CAMC also states that it “is not the successor of any of the five entities Plaintiffs identify in the
Complaint as CAMC’s putative predecessors.”4
CAMC has submitted 1,515 pages worth of affidavits, corporate documents, and other
evidence in support of its Motion, the most important of which is an affidavit by CAMC
representative John Fenn. The Fenn affidavit provides a detailed overview of CAMC’s corporate

1

Def. CAMC’s Mot. to Dismiss (Doc. 66).

2

Pls.’ Compl. (Doc. 1) at 3.

3

Def. CAMC’s Mot. to Dismiss (Doc. 66) at 1-2.

4

Br. in Supp. of Def. CAMC’s Mot. to Dismiss (Doc. 67) at 8.

history.5 The affidavit states that “[n]either CAMC, nor its predecessors . . . ever mined, milled,
or sold talc, whether in Arkansas or in any other state.”6 It explains that “[a]ll of the historical
‘Cyprus’ talc business was carried out” by the predecessor or “by one or more divisions or
subsidiaries of Cyprus Mines Corporation,” which is “a separate entity and a wholly-owned
subsidiary of CAMC.”7 Cyprus Mines Corporation acquired Sierra Talc Company in 1964,8 and
purchased “certain assets” (but not liabilities) of Metropolitan Talc Company, Inc. and American
Talc Company from Charles Mathieu Inc. in 1979.9 The affidavit also states that “CAMC is not a
successor by merger, interest, or acquisition to United Talc Company,” and that “CAMC is not
familiar with a company named ‘United Talc Company.’”10
The Eighth Circuit has held that “[o]nce jurisdiction has been controverted or denied, the
plaintiff has the burden of proving such facts.”11 The Court cited with approval rulings from sister
circuits that held that “the mere allegations of the complaint, when contradicted by affidavits, are
[not] enough to confer personal jurisdiction of a nonresident defendant,”12 and that “[w]hen a
defendant raises through affidavits, documents or testimony a meritorious challenge to personal
jurisdiction, the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or
documents.”13 Specifically, a plaintiff must make a prima facie showing that personal jurisdiction

5

Attach. (Aff. of John Fenn) to Def. CAMC’s Mot. to Dismiss (Doc. 66-1).

6

Id. at 3.

7

Id.

8

Id.

9

Id. at 5.

10

Id.

11

Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004) (quotations omitted).

12

Id. at 1073 (quoting Taylor v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir. 1967)).

13

Id. (quoting Jet Charter Serv., Inc. v. W. Koeck, 907 F.2d 1110, 1112 (11th Cir. 1990)).

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exists, which requires creating “a reasonable inference that the defendant can be subjected to
jurisdiction within the state.”14
Here, Plaintiffs did not rebut CAMC’s Motion and evidence with their own “affidavits,
testimony or documents.” In fact, Plaintiffs did not submit a response at all. The failure to respond
and provide evidence is not a simple procedural violation that can be overlooked. Evidence, and
briefing that interprets that evidence, is key to resolving jurisdictional disputes because such
disputes are highly contextual in nature.15 This is especially true when it comes to jurisdiction
based on a subsidiary’s actions.16 Plaintiffs have not met their burden to prove a prima facie case
of personal jurisdiction after CAMC raised a meritorious challenge to personal jurisdiction.
Plaintiffs’ failure to respond at all, let alone with facts, is fatal.
But even if Plaintiffs had provided evidence and arguments, it is likely that CAMC’s
Motion would still be granted. In response to a separate Motion to Dismiss, Plaintiffs did provide
briefing and evidence in arguing that the Court had jurisdiction over Cyprus Mines, including
evidence that the Johnson & Johnson products that allegedly harmed Mr. Kimmons contained
(during at least part of the exposure period) talc intentionally and exclusively supplied by Cyprus
Mines.17 Those facts and arguments were not enough to convince the Court that it could
constitutionally assert jurisdiction over Cyprus Mines.18 Assuming that Plaintiffs would have
relied on very similar facts in arguing that jurisdiction over CAMC is appropriate because CAMC

14

K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir. 2011) (internal quotations omitted).

15

See, e.g., Order Granting Def. Cyprus Mines’ Mot. to Dismiss (Doc. 95) at 8-15 (collecting cases).

16

Anderson v. Dassault Aviation, 361 F.3d 449, 453 (8th Cir. 2004) (holding that whether the parent and subsidiary
“have a close, synergistic relationship . . . is clearly relevant to the jurisdictional question,” even when that relationship
“is not an abuse of the corporate organizational form”).
17

Pls.’ Resp. to Cyprus Mines’ Mot. to Dismiss (Doc. 81).

18

Order Granting Def. Cyprus Mines’ Mot. to Dismiss (Doc. 95).

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is the parent of Cyprus Mines and its subsidiaries, the Court would grant CAMC’s Motion to
Dismiss for similar reasons as those which led it to grant Cyprus Mines’ Motion to Dismiss.
CAMC’s Motion to Dismiss is GRANTED.
IT IS SO ORDERED this 15th day of September 2020.

________________________________
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE

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