Eastridge v. Goodrich Corporation et al

Filing 230

MEMORANDUM OPINION & ORDER by Judge David J. Hale on 1/7/2015 re: #163 Supplemental MOTION to Dismiss for Lack of Jurisdiction: This motion is HELD IN ABEYANCE. Plaintiff shall have 60 days from the date of entry of this Order to conduct limited discovery. Supplemental Response due by 3/23/2015, Supplemental Reply due by 4/6/2015.cc:counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-cv-862-DJH
PAMELA M. EASTRIDGE, Executrix
of the Estate of Joseph E. Morris, Jr.,

Plaintiff,

v.
GOODRICH CORPORATION, et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
On September 30, 2014, the Court entered a Memorandum Opinion and Order addressing
numerous motions in this matter (Docket No. 203). It has come to the Court’s attention that the
opinion identified a motion of Defendant Society of the Plastics Industry, Inc. (“SPI”) to dismiss the
revised amended complaint pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction
(D.N. 163), but did not dispose of it. This order thus supplements the September 30 Memorandum
Opinion and Order and addresses that motion.
SPI has presented a classic personal jurisdiction analysis under Kentucky law and contends
that the plaintiff, Pamela M. Eastridge, has failed to meet her burden to establish personal
jurisdiction.
Early in the case, SPI filed both a motion to dismiss for failure to state a claim upon which
relief can be granted (D.N. 62) and a motion to dismiss for lack of personal jurisdiction (D.N. 73).
SPI also joined in the motion of the American Chemistry Council, Georgia Gulf Corporation,
Goodrich Corporation, PolyOne Corporation, PPG Industries, Inc., and Shell Oil Co. to dismiss for
failure to state a claim (D.N. 75). Eastridge did not offer an affidavit or other evidence in response

to SPI’s first motion challenging personal jurisdiction. Instead, she sought leave to amend her
complaint.
After rendering an extensive opinion addressing the Fed. R. Civ. P. 12(b)(6) motions (D.N.
155), the Court granted those motions in part, denied them in part, and permitted the plaintiff to file
an amended complaint. SPI’s motion to dismiss for lack of personal jurisdiction was thereafter
denied with leave to refile.
The defendants were also granted leave to supplement their motions to dismiss within thirty
days of the order. SPI filed a supplemental 12(b)(6) brief on November 1, 2013 (D.N. 166) and also
supplemented its motion for lack of personal jurisdiction (D.N. 163). Eastridge filed a number of
iterations, the most recent of which is denominated the Second Revised Amended Complaint
(“SRAC”) (D.N. 179) and contains a section entitled “Personal Jurisdiction over the Society of the
Plastics Industry, Inc.” (D.N. 179 ¶ 15).
The plaintiff bears the burden of establishing personal jurisdiction. Neogen Corp. v. Neo
Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002) (citing Nationwide Mut’l Ins. Co. v. Tryg
Int’l Ins. Co., 91 F.3d 790, 793 (6th Cir. 1996)). While the district court may hold an evidentiary
hearing to determine whether or not jurisdiction exists, it need not do so; in that case, the plaintiff
“need only make a prima facie showing of jurisdiction,” Compuserve, Inc. v. Patterson, 89 F.3d
1257, 1262 (6th Cir. 1996), establishing the necessary facts with “‘reasonable particularity.’”
Neogen, 282 F.3d at 887 (quoting Provident Nat’l Bank v. Cal. Fed. Sav. Loan Ass’n, 819 F.2d 434,
437 (3d Cir. 1987)). Without a hearing, the Court may not “consider facts proffered by the
defendant that conflict with those offered by the plaintiff,” id. (citing Serras v. First Tenn. Bank
Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989)), and “must consider the pleadings and affidavits

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in a light most favorable to the plaintiff.” Compuserve, 89 F.3d at 1262 (citing Theunissen v.
Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)).
We note that “[a] federal district court sitting in diversity may exercise personal jurisdiction
over an out-of-state defendant only to the extent that a court of the forum state could do so.” Kerry
Steel, Inc. v. Paragon Indus., 106 F.3d 147, 148 (6th Cir. 1997). In all questions of personal
jurisdiction, “the constitutional touchstone remains whether the defendant purposefully established
‘minimum contacts’ in the forum state.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The Due Process Clause imposes
constitutional limits on this court’s jurisdiction and on the reach of Kentucky’s long-arm statute,
KRS 454.210.
Kentucky’s long-arm statute had been interpreted, until recently, as reaching the outer limits
of what federal law allows. See Cummings v. Pitman, 239 S.W.3d 77, 84 (Ky. 2007),1 overruled,
Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51 (Ky. 2011). However, the Supreme Court
of Kentucky has overruled Cummings and refined the inquiry into matters of personal jurisdiction:
[T]he proper analysis of long-arm jurisdiction over a nonresident defendant must
proceed under KRS 454.210 to determine if the cause of action arises from conduct
or activity of the defendant that fits into one of the statute’s enumerated categories.
If not, then in personam jurisdiction may not be exercised. When that initial step
results in a determination that the statute is applicable, a second step of analysis must
be taken to determine if exercising personal jurisdiction over the non-resident
defendant offends his federal due process rights.

1

The Supreme Court of Kentucky held in Cummings that “[t]he purpose of this statute is to permit Kentucky courts to
exercise personal jurisdiction over nonresident defendants while complying with federal constitutional due process. We have
interpreted this statute to authorize in personam jurisdiction to reach the outer limits of the due process clause of the Fifth and
Fourteenth Amendments to the United States Constitution, and because of this breadth, our statutory requirements have merged into
the federal due process analysis. For this reason, we ‘need only determine whether the assertion of personal jurisdiction violates
constitutional due process.’” 239 S.W.3d at 84-85 (quoting Aristech Chem. Int’l Ltd. v. Acrylic Fabricators Ltd., 138 F.3d 624, 627
(6th Cir. 1998)).

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Caesars, 336 S.W.3d at 57.
Personal jurisdiction may take one of two forms: general or specific. General jurisdiction
attaches upon “a showing that the defendant has continuous and systematic contacts with the forum
state sufficient to justify the state’s exercise of judicial power with respect to any and all claims the
plaintiff may have against the defendant.” Kerry Steel, 106 F.3d at 149. Alternatively, specific
jurisdiction can be premised on as little as a single event or transaction in the forum state, provided
the claims at issue “‘arise out of or relate to’ a defendant’s contacts with the forum.” Id. (quoting
Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414-15 & nn.8-10 (1984)).
A plaintiff facing a properly supported motion for dismissal on personal jurisdiction grounds
“may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing
that the court has jurisdiction.” Citizens Nat’l Bank of Paintsville v. MCNB Bank & Trust Co., No.
7:12CV-102-KKC, 2013 WL 3894006 (E.D. Ky. July 23, 2013) (quoting Theunissen, 935 F.2d at
1458). SPI has offered three declarations2 to support its contentions that (1) it is a trade association
incorporated in the state of New York with its principal place of business in Washington, D.C.; (2)
it has no offices or employees in Kentucky; (3) it has not conducted meetings or any business in
Kentucky; and (4) from the membership records available, it appears that SPI has had only a limited
number of members from Kentucky in various years, none of whom are defendants in this action.
The Second Revised Amended Complaint contains allegations that SPI has been present in
Kentucky on multiple occasions on SPI business and that SPI pursued litigation in multiple
jurisdictions and attempted on behalf of the defendant members, including Goodrich, to challenge

2

Declarations of Anne Clark, Vice President of Administration with SPI, John S. Eldred, General Counsel for SPI from
1962 to 2004, and Douglas J. Behr, current counsel for SPI (D.N. 163-1).

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OSHA vinyl chloride regulations enacted to protect workers including the plaintiff’s decedent.
Eastridge alleges that SPI and other defendants in this litigation acted in concert to conceal and/or
downplay known risks of vinyl chloride exposure which ultimately caused plaintiff’s decedent to
develop angiosarcoma from exposure at the BF Goodrich plant in Louisville. SRAC ¶ 15 (citing
Soc’y of Plastics Indus. v. Occupational Safety & Health Admin., 509 F.2d 1301 (2d Cir. 1975)).
The SRAC is far reaching, alleging concert of action among the defendants in the vinyl
chloride industry over a period spanning approximately 1930 to 1989. SPI rightly takes issue with
the lack of any specific dates or events which purportedly establish SPI’s presence in Kentucky or
the doing or soliciting of business in Kentucky or any other persistent course of conduct in the
Commonwealth that would subject SPI to the jurisdictional reach of this court under the Kentucky
long-arm statute. SPI further contends that there are no facts from which it can be gleaned that the
alleged tortious injury arose from any such activity, nor has Eastridge identified with specificity any
concerted action that could satisfy the jurisdictional requirements. See KRS 454.210(2)(a); Caesars,
336 S.W.3d at 56.
In her response to SPI’s motion, Eastridge relies only upon the broad allegations of the
SRAC. She has failed thus far to provide specific facts that meet the requirements for the exercise
of long-arm jurisdiction. However, she has requested discovery in the event the Court finds the
allegations of the SRAC lacking. The Court will grant this request. Eastridge shall have sixty days
within which to conduct jurisdictional discovery. If, after such discovery, Eastridge cannot present
specific facts, via affidavits or otherwise, supporting the exercise of personal jurisdiction, SPI must
be dismissed from the case. See Theunissen, 935 F.2d at 1458.
For the reasons stated herein and the Court being otherwise sufficiently advised, it is hereby

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ORDERED that the motion of SPI for dismissal on the ground of lack of personal
jurisdiction (D.N. 163) is HELD IN ABEYANCE and the plaintiff, Pamela M. Eastridge, as
Executrix of the Estate of Joseph E. Morris, Jr., shall have a period of sixty (60) days from the date
of entry of this Order within which to conduct limited discovery concerning the issue of personal
jurisdiction over Defendant Society of the Plastics Industry, Inc. At the expiration of the discovery
period, the plaintiff shall have fourteen (14) days within which to file a supplemental response to
the motion to dismiss for lack of personal jurisdiction (D.N. 163). Defendant Society of the Plastics
Industry, Inc. shall have fourteen (14) days from the date of service of the supplemental response
within which to file a supplemental reply brief. Upon the filing of these two additional briefs, the
matter will stand submitted for decision.
January 7, 2015

David J. Hale, Judge
United States District Court

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