Killam v. Air and Liquid Systems, Inc. et al

Filing 167

ORDER: Plaintiff Marc Killam is authorized to file an Amended Complaint by January 30, 2017. The pending Motions to Dismiss (Doc. ## 37 , 38 , 39 , 40 , 41 , 53 , 56 , 57 , 65 , 89 ) are DENIED WITHOUT PREJUDICE AS MOOT. Signed by Judge Virginia M. Hernandez Covington on 1/12/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARC KILLAM,
Plaintiff,
v.

Case No.: 8:16-cv-2915-T-33TBM

AIR AND LIQUID SYSTEMS, INC.,
ET AL.,
Defendants.
________________________________/
ORDER
This cause is before the Court pursuant to Motions to
Dismiss filed by the following Defendants: Air and Liquid
Systems, Inc. (Doc. # 37), Aurora Pump Company (Doc. # 38),
IMO Industries, Inc. (Doc. # 39), Velan Valve Corp. (Doc. #
40), Warren Pumps, LLC (Doc. # 41), Crane Co. (Doc. # 53),
Goulds Pumps, Inc. (Doc. # 56), Electrolux Home Products, Inc.
(Doc. # 57), Strahman Valves, Inc. (Doc. # 65), and Carrier
Corp. (Doc. # 89).

All Motions are ripe for the Court’s

consideration and are denied without prejudice as moot based
on the Court’s direction that Killam file an Amended Complaint
by January 30, 2017, as discussed herein.
I.

Background
Killam served in the U.S. Navy from 1973 to 1977, aboard

the USS McCandless while at sea and in the Philadelphia Navy
Yard. (Doc. # 2 at ¶ 3).

He alleges that, as a boiler tender,

he “removed and replaced asbestos gaskets, block, refractory,
castable, pipe covering, insulating cement, packing and/or
spray from valves, boilers, pumps, and/or other miscellaneous
machinery, and/or worked near others who did.” (Id.).

In the

performance of his duties, he “cut, scraped, chipped, mixed,
pulled and/or sawed these items,” and during each job he
“regularly inhaled” asbestos dust. (Id.).

He also “ingested

or otherwise absorbed large amounts of asbestos fibers.” (Id.
at ¶ 4).
Killam alleges that Air and Liquid Systems, Inc., Aurora
Pump Company, Carrier Corp., CBS Corporation, Crane Co.,
Cochrane

Corporation,

Dravo

Corporation,

Electrolux

Home

Products, Inc., Flowserve US, Inc., Foster Wheeler Energy
Corporation, General Electric Company, G.G. of Florida, Inc.,
Gould

Pumps,

Inc.,

IMO

Industries,

Inc.,

Ingersoll-Rand

Company, ITT Corporation, John Crane, Inc., Johnson Controls,
Inc., Metropolitan Life Insurance Co., Strahman Valves, Inc.,
Velan Valve Corp., and Warren Pumps, L.L.C. “manufactured,
sold,

distributed,

installed

or

promoted”

the

asbestos

products with which he came into contact. (Id.). He also
alleges that from 1978 to 1980, he was an auto mechanic and
“breathed asbestos dust emanating from products for which
Defendants Honeywell International, Inc. and Flowserve USA,
2

Inc. have responsibility.” (Id. at ¶ 5).
In

December

of

2015,

Killam

learned

that

he

has

“Asbestosis, and at a subsequent time, learned said disease
was wrongfully caused.” (Id. at ¶ 55). On September 26, 2016,
Killam

filed

a

Complaint

against

the

above-captioned

Defendants in the Thirteenth Judicial Circuit in and for
Hillsborough County, Florida. (Doc. # 2).

Killam’s Complaint

contains the following counts, each asserted against all
Defendants:

(1)

negligence,

“Conspiracy

Against

All

(2)

strict

Defendants

in

liability,
Collusion

(3)
with

Metropolitan Life Insurance Company,” and (4) fraudulent
inducement. (Id.).1

Crane Co. removed the case to this Court

on October 13, 2016, pursuant to 28 U.S.C. §§ 1442(a)(1) and
1446. (Id.).

Killam sought an Order of remand (Doc. # 103),

which the Court denied. (Doc. # 164).
The Court now addresses the Motions to Dismiss filed by
the above-captioned Defendants. The Motions seek dismissal of

1

The record reflects that Killam has not yet served
Metropolitan Life Insurance Company. “The Court is persuaded
by the ample authority that holds when an action is removed
from state court, the 90-day period [for service] begins to
run on the date when the action is removed to federal court.”
Mochrie v. RJ Reynolds Tobacco Co., No. 2:16-cv-306-FtM-38CM,
2016 U.S. Dist. LEXIS 157075, at *8 (M.D. Fla. Nov. 14, 2016).
Here, the date of removal is October 13, 2016. The 90-day
deadline for serving Metropolitan Life Insurance Company
therefore expires on January 11, 2017.
3

the Complaint, which was originally filed in state court, on
a variety of substantive and procedural grounds.
of

the

Defendants

argue

that

the

Court

A majority

lacks

personal

jurisdiction and seek dismissal under Federal Rule of Civil
Procedure 12(b)(2).

Because “[a] court without personal

jurisdiction is powerless to take further action,” the Court
will

begin

its

analysis

with

a

discussion

of

personal

jurisdiction. Posner v. Essex Ins. Co., 178 F.3d 1209, 1214
n.6 (11th Cir. 1999).
II.

Rule 12(b)(2) Personal Jurisdiction
A Rule 12(b)(2), Fed. R. Civ. P., motion to dismiss

challenges the trial court’s power to assert jurisdiction over
the defendant. A plaintiff, such as Killam, seeking to assert
personal jurisdiction over a nonresident defendant “bears the
initial burden of alleging in the complaint sufficient facts
to make out a prima facie case of jurisdiction.” Diamond
Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d
1249,

1257

(11th

Cir.

2010).

“A

prima

facie

case

is

established if the Plaintiff presents enough evidence to
withstand a motion for directed verdict.” Consol. Dev. Corp.
v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000).

The

Court must accept as true the facts alleged in the Complaint.
Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).
4

Because the Complaint was filed in state court and Killam
presumably did not anticipate removal predicated upon federal
officer jurisdiction, the Complaint is devoid of factual
allegations to satisfy Rule 12(b)(2), Fed. R. Civ. P., or
other federal requirements (such as constitutionally minimum
contacts and due process concerns of fair play and substantial
justice). See Int’l Shoe Co. v. Wash., 326 U.S. 310, 316
(1945); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).
In

addition,

Killam

failed

to

include

any

factual

allegations aimed at satisfying either the general or specific
prongs of Florida’s long-arm statute, § 48.193.

“As a

conceptual matter, personal jurisdiction can arise either
specifically or generally from a defendant’s contacts with the
forum state. General jurisdiction arises from contacts with
the forum that are not directly related to the cause of action
being litigated, while specific jurisdiction is founded on
activities in the forum that are related to the cause of
action at issue.” Estate of Miller v. Toyota Motor Corp., No.
6:07-cv-1358-Orl-19DAB, 2008 U.S. Dist. LEXIS 13300, at *8
(M.D. Fla. Feb. 22, 2008)(internal citations and quotation
marks omitted).
“The burden of proving the right to proceed under the
Florida long-arm statute is initially upon the plaintiff; the
5

plaintiff must allege facts that bring the defendant within
the parameters of the statute.” Bullard Abrasives, Inc. v.
Taiwan Resibon Abrasive Prods., Co., Ltd., 8:09-cv-199-T30TGW, 2009 U.S. Dist. LEXIS 55242, at *5 (M.D. Fla. June 15,
2009).
is

“If a plaintiff has pled a basis for jurisdiction, it

incumbent

jurisdiction

upon
to

do

a

defendant

so

by

an

who

wishes

appropriate

to

challenge

motion

and

an

attached, legally sufficient affidavit or other sworn proof.”
Id. “Once, that occurs, the burden shifts to the plaintiff to
refute the defendant’s affidavit by filing its own affidavit
or other sworn proof.” Id. at *6.

“If the plaintiff fails to

refute the legally sufficient factual assertions set forth in
the defendant’s affidavit, the defendant’s motion challenging
personal jurisdiction must be granted.” Id.
The Complaint, Motions to Dismiss, and Responses thereto
present a disconnect in which specific jurisdictional facts
are neither alleged nor challenged.

As for Killam, he

discusses exposure to asbestos in Pennsylvania from 1973-1977,
and in Massachusetts from 1978-1980, as well as a diagnosis
with Asbestosis in Florida in 2015.
55).

(Doc. # 2 at ¶¶ 2, 5,

The Complaint identifies the Defendants as “foreign

defendants,”

but

Killam

does

not

provide

a

sufficiently

detailed discussion in the Complaint or in response to the
6

Motions to Dismiss as to what provides this Court with
personal jurisdiction over any one of the Defendants.
For example, in response to Aurora Pump Company’s Motion
to Dismiss, Killam claims: “Plaintiff alleged in his complaint
that Aurora Pump engages in business in Florida.
¶ 9.

See Compl.

If the facts of the complaint are taken as true,

Plaintiff

has

pled

a

prima

facie

case

for

jurisdiction

pursuant to Florida’s long arm statute.” (Doc. # 112 at 5).
However, ¶ 9 of the Complaint does not allege that Aurora Pump
Company “engages in business in Florida.” Instead, ¶ 9 of the
Complaint alleges: “Defendant Aurora Pump Company is a foreign
corporation organized in North Carolina and authorized to do
business in the State of Florida.” (Doc. # 2 at ¶ 9).

To

accept Killam’s argument, the Court would have to assume that
being “authorized to do business in the State of Florida” is
the same as “operating, conducting, engaging in, or carrying
on a business or a business venture in [Florida] or having an
office or agency in [Florida].” Fla. Stat. § 48.193(1)(a)(1).
The Court is unable to make this leap.

In fact, in Dinsmore

v. Martin Blumenthal Associates, Inc., 314 So. 2d 561, 564
(Fla. 1975), the Florida Supreme Court instructed: “In order
to determine whether jurisdiction can be acquired over the
nonresident

defendants

pursuant
7

to

§

48.191(1),

it

is

necessary to determine whether the individual or corporate
defendant, was carrying on a business or business venture in
this State.” Id.

That Court specifically ruled: “The mere

giving of a listing to do business . . . in Florida by a
nonresident . . . does not indicate a general course of
business activity in this State.” Id.
In addition, perhaps also grappling with the vague or
absent allegations regarding personal jurisdiction in the
Complaint, the Defendants have not filed affidavits or other
sworn documents challenging personal jurisdiction nor have
they

presented

specific

arguments

regarding

personal

jurisdiction. As an example, Aurora Pump Company provides the
following discussion in its Motion to Dismiss:
Aurora is not a Florida Corporation, nor does it
have its principal place of business in Florida.
There are no allegations that Aurora maintains
‘continuous and systematic contacts’ with Florida
so as ‘to render [it] essentially at home in the
forum State.’ In addition, the Complaint fails to
allege that Aurora has sufficient relevant minimum
contacts to render it subject to jurisdiction in
this action.
(Doc. # 38 at 5).2
The Court agrees that the Complaint, as pled, does not

2

A number of Defendants have adopted and joined in Aurora
Pump Company’s Motion to Dismiss, as well as various Motions
to Dismiss filed by other Defendants. See (Doc. ## 46, 48, 56,
64, 77, 79, 122).
8

contain sufficient factual allegations regarding personal
jurisdiction.

Yet,

the

Court

recognizes

that

Killam’s

Complaint has been plucked from state court and thrust into
the federal forum.

Therefore, the Court sua sponte grants

Killam the opportunity to file an Amended Complaint by January
30, 2017, containing specific allegations that provide the
Court with a basis for exercising personal jurisdiction over
each named Defendant.

In the instance that any Defendant

wishes to challenge the assertion of personal jurisdiction in
response to the Amended Complaint, that Defendant should
provide specific arguments and attach an affidavit to the
Motion

to

Dismiss.3

In

addition,

the

Court

takes

this

opportunity to mention some guiding principles for Killam
moving forward.
III. Rules 8 and 9, Fed. R. Civ. P.
Federal

Rule

of

Civil

Procedure

8

requires

that

a

Complaint contain a short and plain statement of the claim
demonstrating

that

the

plaintiff

is

entitled

to

relief.

However, fraud claims, such as those asserted in counts three
3

Of all the Defendants that challenged personal
jurisdiction, Dravo Corporation is the only Defendant that
attached an affidavit to its Motion to Dismiss. (Doc. # 151).
Notably, Killam “dropped” Dravo Corporation (Doc. # 165) and
Dravo Corporation has been dismissed from the action without
prejudice. (Doc. # 166).
9

and four, are subject to Rule 9(b)’s heightened pleading
requirements.

Rule 9(b) provides that “[i]n allegations of

fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” The Eleventh
Circuit

has

held

that

Rule

9(b)’s

fraud

particularity

requirement is met as long as the complaint sets forth
(1) precisely what statements were made in what
documents or oral representations or what omissions
were made, and (2) the time and place of each such
statement and the person responsible for making
(or, in the case of omissions, not making) same,
and (3) the content of such statements and the
manner in which they misled the plaintiff, and (4)
what the defendants obtained as a consequence of
the fraud.
Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir.
2001).
“When, as here, a fraud claim involves multiple defending
parties,

the

claimant

must

make

specific

and

separate

allegations against each defendant.” Vallina v. Mansiana Ocean
Residences LLC, No. 10-cv-21506, 2011 U.S. Dist. LEXIS 157707,
at *21 (S.D. Fla. June 17, 2011)(citing Haskin v. R.J.
Reynolds Tobacco Co., 995 F. Supp. 1437, 1440 (M.D. Fla.
1998)(dismissing a complaint for failing to satisfy Rule 9(b)
when

it

referred

to

“defendants”

generally

and

did

not

differentiate among them)).
In evaluating Killam’s Complaint, in which he alleges
10

that he suffered bodily harm due to the actions and inactions
of

a

host

of

undifferentiated

Defendants,

the

Court

is

reminded of the complaint in Jackson-Platts v. McGraw-Hill
Companies, Inc., No. 8:13-cv-850-T-23MAP, 2013 U.S. Dist.
LEXIS 175642 (M.D. Fla. Nov. 8, 2013). There, the decedent’s
estate

sued

a

vast

“array

of

conspirators”

in

multiple

lawsuits after the decedent suffered from neglect at a nursing
home and ultimately died. Id. at *2.
complaint

after

finding

that

it

The court dismissed the
contained

confusing,

conclusory assumptions instead of targeted, fact specificallegations:
Although alleging an encompassing, malevolent, and
predatory scheme, the complaint provides the reader
with little or nothing on which to conclude that
the allegations arise from a sound factual basis .
. . . The constant attribution of acts to “the
Defendants” and “the Co-Conspirators” disguises
much information necessary to glean the meaning, if
any, of the allegations. The almost entire absence
of allegations of time, place, and manner and the
pertinent absence of the identity of the particular
actors is wholly disabling to the disinterested
reader.
Id. at *13.

In a similar vein, Crane Co. argues in its Motion

to Dismiss that Killam “has commingled generalized allegations
against approximately twenty-two (22) Defendants rendering it
impossible for Crane Co. to provide a meaningful answer to the
overbroad

and

vague

allegations

11

directed

against

all

Defendants.” (Doc. # 53 at 2).

Crane Co.’s argument is well-

taken.
In

addition,

allegations

must

Killam
include

is

reminded

“more

than

that
an

a

complaint’s

unadorned,

the-

defendant[s]-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).

In preparing his Amended

Complaint, and particularly with respect to any fraud claims,
Killam is instructed to provide specific allegations giving
each Defendant notice of the conduct in question that may
entitle Killam to relief.

Killam is not permitted to “lump”

all Defendants together in “boundless, amorphous general
allegations of ‘fraud.’” Haskins, 995 F. Supp. at 1439.
As

noted,

Killam

is

authorized

to

file

an

Amended

Complaint by January 30, 2017, to correct the deficiencies
noted herein. The Court denies the pending Motions to Dismiss
without prejudice as moot (Doc. ## 37, 38, 39, 40, 41, 53, 56,
57, 65, 89), pending the filing of Killam’s Amended Complaint.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Marc Killam is authorized to file an Amended
Complaint, consistent with the foregoing, by January 30,
2017.
12