Harding et al v. A.O. Smith Corporation et al
REPORT AND RECOMMENDATIONS- granting 60 MOTION to Dismiss. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 10/2/2017. Signed by Judge Sherry R. Fallon on 9/14/2017. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
MICHAEL R. HARDING and
A.O. SMITH CORPORATION, et al.,
Civ. No. 17-00251-VAC-SRF
REPORT AND RECOMMENDATION
Presently ·before the court in this asbestos-related personal injury action is a motion to
dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2),
filed by defendant Exelon Corporation ("Exelon"). (D.I. 60) For the reasons set forth below, the
court recommends granting Exelon's motion to dismiss.
A. Procedural History
Michael and Sally Harding ("plaintiffs") filed this asbestos action in the Delaware
Superior Court against multiple defendants on January 20, 2017, asserting claims arising from
Mr. Harding's alleged harmful exposure to asbestos. (D.I. 1, Ex. 1 at 2) Defendant Crane Co.
removed the action to this court on March 10, 2017. (D.I. 1) Exelon filed a motion to dismiss
based on lack of personal jurisdiction on May 22, 2017. (D .I. 60) Plaintiffs did not respond to
Plaintiffs allege Mr. Harding developed lung cancer as a result of exposure to asbestoscontaining products during his career with various employers, including the United States Navy,
where Mr. Harding worked as a pipe fitter from 1963 to 1967. (D.I. 1, Ex. 1 at ifif 3, 13)
Plaintiffs contend defendants manufactured, sold, removed, installed, or distributed asbestoscontaining products. (Id. at if 8) Accordingly, plaintiffs assert negligence, willful and wanton
conduct, strict liability, and loss of consortium claims. (D.I. 1, Ex. 1 at ifif 14-32)
Plaintiffs have resided in Darien, Connecticut since 1983. (D.I. 1, Ex. 1 at if 2) Exelon is
not a Delaware business entity and does not have a principal place of business in Delaware. (D.I.
60 at if 3)
Rule 12(b)(2) of the Federal Rules of Civil Procedure directs the court to dismiss a case
when the court lacks personal jurisdiction over the defendant. Fed. R. Civ. P. 12(b)(2). When
reviewing a motion to dismiss pursuant to Rule l 2(b)(2), a court must accept as true all
allegations of jurisdictional fact made by the plaintiff and resolve all factual disputes in the
plaintiffs favor. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004); Traynor v.
Liu, 495 F. Supp. 2d 444, 448 (D. Del. 2007). Once a jurisdictional defense has been raised, the
plaintiff bears the burden of establishing, with reasonable particularity, that sufficient minimum
contacts have occurred between the defendant and the forum to support jurisdiction. See
Provident Nat'! Bankv. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). To
meet this burden, the plaintiff must produce "sworn affidavits or other competent evidence,"
since a Rule 12(b)(2) motion "requires resolution of factual issues outside the pleadings." Time
Share Vacation Club v. At!. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). A plaintiff "need
only establish a prima facie case of personal jurisdiction" when the court has not held an
evidentiary hearing. O'Connor v. Saf!dY Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).
To establish personal jurisdiction, a plaintiff must produce facts sufficient to satisfy two
requirements by a preponderance of the evidence, one statutory and one constitutional. See Time
Share, 735 F.2d at 66; Reach & Assocs. v. Dencer, 269 F. Supp. 2d 497, 502 (D. Del. 2003).
With respect to the statutory requirement, the court must determine whether there is a statutory
basis for jurisdiction under the forum state's long-arm statute. See IMO Indus., Inc. v. Kiekert
AG, 155 F.3d 254, 259 (3d Cir. 1998); Reach & Assocs., 269 F. Supp. 2d at 502. The
constitutional basis requires the court to determine whether the exercise of jurisdiction comports
with the defendant's right to due process. See id.; Int'! Shoe Co. v. Washington, 326 U.S. 310,
Pursuant to the relevant portions of Delaware's long-arm statute, 10 Del. C. §
3104(c)( 1)-(4), a court may exercise personal jurisdiction over a defendant when the defendant
or its agent:
(1) Transacts any business or performs any character of work or service in the
(2) Contracts to supply services or things in this State;
(3) Causes tortious injury in the State by an act or omission in this State;
(4) Causes tortious injury in the State or outside of the State by an act or omission
outside the State if the person regularly does or solicits business, engages in
any other persistent course of conduct in the State or derives substantial
revenue from services, or things used or consumed in the State.
10 Del. C. § 3104(c)(l)-(4). With the exception of (c)(4), the long-arm statute requires a
showing of specific jurisdiction. See Shoemaker v. McConnell, 556 F. Supp. 2d 351, 354-55 (D.
Del. 2008). Subsection (c)(4) confers general jurisdiction, which requires a greater extent of
contacts, but allows the exercise of personal jurisdiction even when the claim is unrelated to the
forum contacts. See Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1466 (D.
If a defendant is found to be within the reach of the long-arm statute, the court must then
analyze whether the exercise of personal jurisdiction comports with due process by determining
whether the plaintiff has demonstrated that the defendant "purposefully avail[ ed] itself of the
privilege of conducting activities within the forum State," such that it should "reasonably
anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980) (citations omitted). The court may exercise specific personal jurisdiction
consistent with due process when the plaintiffs cause of action arises from the defendant's
activities in the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
The court may exercise general personal jurisdiction consistent with due process when the
plaintiffs cause of action is unrelated to the defendant's activities in the forum state, so long as
the defendant has "continuous and systematic contacts with the forum state." Applied
Biosystems, Inc., 772 F. Supp. at 1470.
In Daimler AG v. Bauman, the Supreme Court stated that the "paradigm all-purpose
forums for general jurisdiction are a corporation's place of incorporation and principal place of
business." 134 S. Ct. 746, 749 (2014). The Supreme Court did not hold that a corporation may
be subject to general jurisdiction only in one of these locations, but rejected the notion that
"continuous and systematic" contacts alone could confer general jurisdiction, clarifying that the
role of general jurisdiction is to "afford plaintiffs recourse to at least one clear and certain forum
in which a corporate defendant may be sued on any and all claims." Id. at 760-62.
The court should grant Exelon' s motion to dismiss based on lack of personal jurisdiction
because plaintiffs have not met their burden of establishing, with reasonable particularity, that
sufficient minimum contacts have occurred between Exelon and the forum to support
jurisdiction. See Provident Nat'! Bank, 819 F.2d at 437.
When a defendant raises the defense of the court's lack of personal jurisdiction, the ·
burden shifts to plaintiff to prove, by a preponderance of the evidence, facts sufficient to
establish jurisdiction. IMO Industries, Inc., 155 F.3d at 257; Carteret Sav. Bank, FA. v.
Shushan, 954 F.2d 141, 146 (3d Cir. 1992), cert. denied, 506 U.S. 817 (1992). To satisfy its
burden, plaintiff may not rely on the bare pleadings, but must establish jurisdictional facts
through sworn affidavits or other competent evidence., Time Share Vacation Club, 73 5 F .2d at
66 n. 7. In their complaint, plaintiffs state Exelon is "a foreign business entity that does business
in Delaware." (D.I. 1, Ex. 1 at if 7) However, this statement is conclusory and falls short of
demonstrating either specific or general jurisdiction that comports with due process. See
Provident Nat'! Bank, 819 F.2d at 437. Moreover, as mentioned supra, plaintiffs did not respond
to Exelon's motion to dismiss and have not produced the necessary evidence to meet their
burden of proof. Although a court must accept as true all allegations of fact made by plaintiff
and resolve all factual disputes in plaintiffs favor, plaintiffs may nofsimply rely on conclusory
statements made in the bare pleadings.
Specific personal jurisdiction over Exelon does not exist in the present case. Plaintiffs
allege Mr. Harding was exposed to asbestos-containing products during his work-related
activities, all of which occurred in Connecticut and outside Delaware. (D.I. 1, Ex. 1 at if 3)
Plaintiffs' complaint does not specify that any of the alleged exposures which occurred while
Mr. Harding was in the U.S. Navy occurred in Delaware. (Id.) In addition, plaintiffs do not
allege that any wrongful conduct by Exelon occurred in Delaware. Moreover, Mr. Harding is a
resident of Connecticut, not Delaware. (D.I. 1, Ex. 1 at 9jf 2) Thus, there is no nexus between the
alleged injurious conduct, the defendant, and the State of Delaware. See Burger King, 471 U.S.
General jurisdiction also does not exist over Exelon in the present case. Exelon is not a
Delaware business entity and does not have a principal place of business in Delaware. (D .I. 60 at
3) Therefore, Exelon is not "at home" in Delaware. Daimler, 134 S. Ct. at 749. Moreover, the
Delaware Supreme Court has noted that the Daimler Court rejected the notion that "a corporation
is subject to general jurisdiction in every state in which it 'engages in a substantial, continuous,
and systematic course of business' calling that position 'unacceptably grasping.'" Genuine Parts
Co. v. Cepec, 137 A.3d 123, 136 (Del. Apr. 18, 2016) (quoting Daimler, 134 S. Ct. at 761).
For the foregoing reasons, the court recommends granting Exelon's motion to dismiss.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1
(3d Cir. 2006); Henderson v. Carlson,. 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
Dated: September ~, 2017
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