The D.S. Brown Company v. White-Schiavone, JV et al

Filing 116

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons, the motion to dismiss filed by defendant Huntsman International LLC (Docket No. 92 ) is ALLOWED and The D.S. Brown Company's motion for reconsideration (Docket NO. 96 ) is DENIED. The claims against Huntsman International LLC are hereby DISMISSED. So ordered. (Vieira, Leonardo)

Case 1:19-cv-30095-NMG Document 116 Filed 04/28/21 Page 1 of 15

United States District Court
District of Massachusetts
The D.S. Brown Company,
Plaintiff,
v.
White-Schiavone, JV, et al.
Defendants.

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Civil Action No.
19-30095-NMG

MEMORANDUM & ORDER
GORTON, J.
This consolidated action arises from a public works project
whereby a materials supplier, The D.S. Brown Company (“D.S.
Brown” or “plaintiff”), delivered to the general contractor (or
its agent), White-Schiavone, J.V. (“White-Schiavone”), a certain
kind of concrete that was purportedly defective.

In both its

second amended complaint and third-party complaint, D.S. Brown
brings an assortment of state law claims and a petition for
declaratory judgment against White-Schiavone, the general
contractor, J.F. White Contracting Co. (“J.F. White”) and
Schiavone Construction Co., LLC (“Schiavone”), the joint venture
partners (collectively “the Schiavone defendants”) and against
Huntsman International LLC (“Huntsman”), a manufacturer of a

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component of the concrete, (collectively “the defendants”) to
determine the contractual responsibilities of each party.
In a Memorandum and Order entered on November 5, 2020 (“the
November M&O”), this Court, inter alia, dismissed from the SAC
all claims against Huntsman for lack of personal jurisdiction.
Now pending before the Court are D.S. Brown’s motion for
reconsideration and Huntsman’s motion to dismiss the third-party
complaint for lack of personal jurisdiction.

For the reasons

that follow, D.S. Brown’s motion will be denied and Huntsman’s
motion will be allowed.
III. Background
This Court has set forth the convoluted factual and
procedural history of this case in greater detail in the Court’s
prior Memoranda and Orders, see Docket Nos. 88 & 90, focusing
here on the details relevant to the pending motions.
A. The Parties and Factual History
D.S. Brown is an Ohio corporation that designs,
manufactures and supplies engineered products for the bridge and
highway industries.

Defendant White-Schiavone is a

Massachusetts joint venture that was awarded a construction
contract by the Massachusetts Department of Transportation
(“MassDOT”) and became the general contractor to replace the
bridge decking on the I-91 viaduct in Springfield, Massachusetts
(“the Project”).

White-Schiavone is comprised of two joint
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venture partners: 1) J.F. White Contracting Co., a Massachusetts
corporation with its principal place of business in
Massachusetts and 2) and Schiavone Construction Co., LLC, a
limited liability company.

Defendant Huntsman International LLC

is a Texas-based limited liability company that designs,
manufacturers and sells chemical products.
As part of the Project, White-Schiavone entered into a
materials contract (“the Contract”) with D.S. Brown in or about
June, 2015, under which plaintiff agreed to supply WhiteSchiavone with a certain kind of concrete called “delcrete”,
among other materials.

The delcrete was used in the

installation of expansion joints in the I-91 viaduct bridge
deck.
Plaintiff asserts that it did not itself manufacture the
delcrete but instead purchased it from Huntsman pursuant to
independent Purchase Orders.

One Purchase Order in October,

2016, directed Huntsman to deliver a shipment of delcrete
directly to White-Schiavone in Massachusetts.

All other

Purchase Orders, which were executed in May, July, and August,
2017 (“the 2017 shipments”), directed Huntsman to ship the
delcrete to D.S. Brown in Ohio, after which plaintiff forwarded
the materials to White-Schiavone in Massachusetts.
By mid-2017, White-Schiavone had discarded the 2016
shipment of delcrete (for which White-Schiavone is not seeking
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reimbursement), and had received new shipments from D.S. Brown
that it was using to install the expansion joints.

Soon

thereafter, however, White-Schiavone reported to MassDOT that
the delcrete was causing the expansion joints to fail because it
was crumbling, de-bonding and separating from the bridge deck.
It is unclear what caused the failures but D.S. Brown submits
that they were caused by either White-Schiavone’s storage,
handling or installation procedures or Huntsman’s manufacturing
process.
In or about December, 2017, D.S. Brown began to supply
White-Schiavone with a different batch of delcrete (“delcrete
2”) which functioned properly.

MassDOT, in response, directed

White-Schiavone to replace all previously installed expansion
joints with new joints using delcrete 2.

D.S. Brown asserts

that White-Schiavone subsequently threatened to file suit
against it for supplying defective delcrete, causing D.S. Brown
to initiate an action for declaratory judgment.
B. The Procedural History
In July, 2019, plaintiff commenced this action in the
Western Division of this District Court, and subsequently
amended its complaint twice.

In the second amended complaint

(“SAC”) plaintiff incorporates eight counts.

Count I seeks a

declaratory judgment to determine the contractual
responsibilities of each party in connection with the
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purportedly defective delcrete.

The remaining seven counts were

brought against Huntsman, asserting that it supplied plaintiff
with defective delcrete and, as a result, breached its implied
warranty of merchantability and its contract, and was negligent,
among other things.
Thereafter, all of the defendants filed motions to dismiss
the SAC in its entirety.

White-Schiavone and its joint venture

partners moved to dismiss the SAC for failure to state a claim,
while Huntsman moved to dismiss it for lack of subject matter
jurisdiction, lack of personal jurisdiction and failure to state
a claim.

On the same day Huntsman filed its motion to dismiss,

it also filed a complaint in Texas state court, seeking a
declaratory judgment against D.S. Brown in connection with the
defective delcrete. See Huntsman International LLC v. D.S. Brown
Co., No 19-11-14861 (Co. Ct., Montgomery County, Tex. Nov. 1,
2019).
In November, 2019, White-Schiavone filed a complaint
against D.S. Brown in the Massachusetts Superior Court, seeking
to hold D.S. Brown liable for damages resulting from the
defective 2017 delcrete. See White-Schiavone, JV v. The D.S.
Brown Co., No. 19-3663 (Mass. Super. Ct., Nov. 21, 2019).

D.S.

Brown subsequently removed that case to the Western Division of
this Court and filed a counterclaim and third-party complaint
against the Schiavone defendants and Huntsman, asserting claims
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parallel to those in the SAC.

A few weeks after the removal,

D.S. Brown moved to consolidate the two cases and WhiteSchiavone simultaneously filed a motion to transfer both of them
to the Eastern Division of the District of Massachusetts.

The

motion to transfer was allowed in April, 2020, bringing both
cases to this Session of this Court.

The motion to consolidate

was subsequently allowed in a Memorandum and Order entered by
this Court on October 29, 2020 (“the October M&O”).
Also in the October M&O, this Court denied the motion of
defendant Huntsman to dismiss for lack of subject matter
jurisdiction, finding D.S. Brown diverse from all of the
defendants in this case.

A week later, this Court entered

another Memorandum and Order (“the November M&O”) in which it
allowed Huntsman’s motion to dismiss for lack of personal
jurisdiction but denied the Schiavone defendants’ motion to
dismiss for failure to state a claim.

In dismissing Huntsman

from the SAC, this Court reasoned that none of the underlying
claims related to any contacts Huntsman had with Massachusetts,
nor did the factual allegations indicate that Huntsman
purposefully availed itself of conducting business in the
Commonwealth.

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VI.

Discussion
A. This Court Lacks Personal Jurisdiction Over Huntsman
The two motions pending before this Court compel it to

reconsider its prior determination that personal jurisdiction
over defendant Huntsman is lacking in this case.

In particular,

Huntsman has moved to dismiss D.S. Brown’s third-party complaint
for lack of personal jurisdiction and D.S. Brown has moved for
reconsideration of the Court’s November M&O to the extent it
dismissed Huntsman for lack of personal jurisdiction.
Huntsman submits that D.S. Brown still fails to demonstrate
that this Court has jurisdiction over the Texas-based company.
Huntsman contends that there is no evidence in the record that
it has had any relevant contacts with Massachusetts and that its
motion to dismiss is “essentially a formality” because the same
jurisdictional deficiencies are present in D.S. Brown’s thirdparty complaint as in the SAC.
D.S. Brown responds that its allegation in the third-party
complaint that Huntsman sent the 2016 shipment of delcrete
directly to Massachusetts establishes specific jurisdiction over
that defendant.

It adds that reconsideration of this Court’s

prior decision is warranted because “new evidence” demonstrates
that Huntsman knew its product would be utilized in
Massachusetts and that the invoices of the limited liability
company directed payment to an address located in Boston.
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Huntsman rejoins that D.S. Brown’s reliance on the 2016
shipment of delcrete is misplaced because, as this Court already
found, that shipment was unrelated to the pending dispute.
White-Schiavone does not seek recovery of any cost associated
with delcrete sent prior to May, 2017, thereby rendering the
2016 shipment irrelevant.
B. Legal Standard
The Court has “substantial discretion and broad authority
to grant or deny” a motion for reconsideration. Ruiz Rivera v.
Pfizer Pharm., LLC, 521 F.3d 76, 81 (1st Cir. 2008).

A motion

for reconsideration will be allowed if the movant shows a
manifest error of law, newly discovered evidence or that the
Court has made an error “not of reasoning but apprehension.” Id.
On a motion to dismiss for lack of personal jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(2), the plaintiff bears the
burden of showing that the Court has authority to exercise
jurisdiction over defendants. Cossart v. United Excel Corp., 804
F.3d 13, 18 (1st Cir. 2015).

Where, as here, when the Court

decides a motion to dismiss for lack of personal jurisdiction
without first holding an evidentiary hearing, it applies the
“prima facie” standard of review and takes the plaintiff’s
properly documented evidentiary proffers as true and
construe[s] them in the light most favorable to
[plaintiff’s] jurisdictional claim.

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A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir.
2016).

A plaintiff cannot, however, rely on “unsupported

allegations” and “must put forward evidence of specific facts to
demonstrate jurisdiction exists.” Id. (internal citations
omitted); see also Philips v. Prairie Eye Center, 530 F.3d 22,
26 (1st Cir. 2008) (“In order to make a prima facie showing of
jurisdiction, the plaintiff ordinarily cannot rest upon the
pleadings but is obliged to adduce evidence of specific facts.”
(internal quotation marks omitted)).
In a diversity suit, this Court acts as “the functional
equivalent of a state court sitting in the forum state.” See
Astro–Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8
(1st Cir. 2009).

As such, to make a prima facie showing of

personal jurisdiction in diversity cases, the plaintiff must
demonstrate that the exercise of jurisdiction 1) is permitted by
the Massachusetts long-arm statute, M.G.L. c. 223A, § 3 and
2) coheres with the Due Process Clause of the Fourteenth
Amendment to the United States Constitution (“Fourteenth
Amendment”) by showing that each defendant has “minimum
contacts” with Massachusetts. Daynard v. Ness, Motley, Loadholt,
Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002).
The requirements of M.G.L. c. 223A, § 3 are substantially
similar to (although potentially more restrictive than) those
imposed by the Fourteenth Amendment. See Copia Commc'ns, LLC v.
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AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016) (noting that
“[r]ecently, however, we have suggested that Massachusetts's
long-arm statute might impose more restrictive limits on the
exercise of personal jurisdiction than does the Constitution”).
Because no party has invoked the long-arm statute, the Court
will proceed directly to the constitutional analysis. See id.
The Due Process Clause demands a showing by plaintiff of
either general or specific jurisdiction. Negron-Torres v.
Verizon Commc’n Inc., 478 F.3d 19, 24 (1st Cir. 2007).

To

establish either, plaintiff must demonstrate that each defendant
has “minimum contacts” with Massachusetts such that the exercise
of personal jurisdiction over that defendant accords with
“traditional notions of fair play and substantial justice.” Id.
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
1. General Jurisdiction
General jurisdiction exists when the defendant has engaged
in “continuous and systematic activity, unrelated to the suit,
in the forum state.” United States v. Swiss Am. Bank, 274 F.3d
610, 618 (1st Cir. 2001).

Exercising general jurisdiction over

an entity that is neither incorporated nor has its principal
place of business in the forum is exceptional and must be
reserved for situations in which the entity is “essentially at
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home in the forum State.” See Daimler AG v. Bauman, 571 U.S.
117, 133 n.11, 139 n.19 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v Brown, 564 U.S. 915, 919 (2011)).
Despite the “new evidence” proffered by D.S. Brown, its
argument that this Court has general jurisdiction over Huntsman
remains unavailing.

That evidence is insufficient to show that

Huntsman, a Texas-based company, has engaged in such continuous
or systematic activity in Massachusetts that it can be deemed
“essentially at home” in the Commonwealth.

D.S. Brown’s

suggestion that Huntsman is registered to do business in
Massachusetts and maintains a P.O. Box in Boston falls short of
the “exceptional” circumstances warranting the exercise of this
Court’s general jurisdiction. See Daimler AG, 571 U.S. at 139
n.19 (“It is one thing to hold a corporation answerable for
operations in the forum State, quite another to expose it to
suit on claims having no connection whatever to the forum State”
(internal citation omitted)).
2. Specific Jurisdiction
Specific jurisdiction, on the other hand, requires a
“demonstrable nexus” between the claims of the plaintiff and the
contacts of the defendant with the forum state. Swiss Am. Bank,
274 F.3d at 618.

Such nexus can be created only by the

defendant’s contacts and not by the unilateral activity of the
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plaintiff with the forum state. Harlow v. Children’s Hosp., 432
F.3d 50, 58 (1st Cir. 2005).
In analyzing those contacts, this Court must consider three
factors: relatedness, purposeful availment and reasonableness.
See Astro-Med Inc., 591 F.3d at 9.

An affirmative finding as to

all three is required before a court can exercise specific
jurisdiction over a defendant. Phillips Exeter Academy v. Howard
Phillips Fund, 196 F.3d 284, 288 (1st Cir. 1999).
a. Relatedness
The first factor questions whether “the claim underlying
the litigation . . . directly arise[s] out of, or relate[s] to,
the defendant’s forum-state activities.” Astro-Med, Inc., 591
F.3d at 9 (internal quotation marks omitted).

Although that

inquiry is a “flexible, relaxed standard,” id. (internal
citations omitted), it cautions that the exercise of personal
jurisdiction will be improper if the “defendant’s forum-state
contacts seems attenuated and indirect.” Harlow, 432 F.3d at 61.
Having reviewed the submissions of the parties, this Court
finds once again that the claims underlying this litigation do
not relate to any contacts Huntsman has had with Massachusetts.
Indeed, the only proffered contact between Huntsman, the
delcrete and Massachusetts is the 2016 shipment which, as this
Court explained previously in the November M&O, may pertain to
the general relationship between the parties but is irrelevant
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to this litigation because White-Schiavone is not seeking
recovery of damages associated with it. See Sawtelle, 70 F.3d at
1389 (“The relatedness requirement is not met merely because a
plaintiff’s cause of action arose out of the general
relationship between the parties; rather, the action must
directly arise out of the specific contacts between the
defendant and the forum state.”).
With respect to the disputed 2017 shipments, moreover,
Huntsman presumably manufactured the delcrete in Texas or in
another state outside of the Commonwealth and, then, shipped it
from that state directly to D.S. Brown in Ohio pursuant to
independent Purchase Orders.

Thereafter, D.S. Brown forwarded

the product to Massachusetts, apparently without any involvement
of Huntsman.

Accordingly, Huntsman’s manufacture and sale of

the purportedly defective delcrete implicates Texas and Ohio but
not Massachusetts.
b. Purposeful Availment
The Court further concludes that D.S. Brown has, again,
failed to establish the second jurisdictional factor of
“purposeful availment by defendants of the privilege of
conducting business in [Massachusetts],” making any contacts
with it foreseeable and voluntary. Sawtelle v. Farrell, 70 F.3d
1381, 1389, 1393 (1st Cir. 1995); Astro-Med, Inc., 591 F.3d at
10.

Purposeful avialment is required to ensure that specific
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jurisdiction is premised on more than “random, isolated, or
fortuitous” contacts by defendant with the forum state or “the
unilateral activity of another party or third party.” See Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (internal
citations and quotation marks omitted).
None of the new evidence proffered by D.S. Brown convinces
this Court that, by manufacturing delcrete outside the
Commonwealth, executing purchase orders from an Ohio corporation
and shipping the product to Ohio, Huntsman purposefully availed
itself of the privileges of conducting business in
Massachusetts.

That Huntsman knew the delcrete was to be

shipped to Massachusetts and that it directed payment of its
invoices to a Boston, Massachusetts P.O. Box does not change the
fact that its product ended up in the Commonwealth only as the
result of the unilateral activity of D.S. Brown. See Walden, 571
U.S. at 285 (“[T]he plaintiff cannot be the only link between
the defendant and the forum.”); see also Cambridge Literary
Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg,
295 F.3d 59, 65 (1st Cir. 2002) (“[T]he due process clause
arguably requires more than a literal but for link between the
Massachusetts contact [of defendant] and the asserted cause of
action.” (internal quotation marks omitted)).
Despite the concerted effort of D.S. Brown to convince this
Court that it has personal jurisdiction over Huntsman,
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plaintiff’s argument falls short.

This Court will, therefore,

dismiss Huntsman from this consolidated action.
A. Jurisdictional Discovery
In its broad discretion, the Court is permitted to allow
jurisdictional discovery where a plaintiff has made a “colorable
claim” of jurisdiction and has been “diligent in preserving
[its] rights to be entitled to jurisdictional discovery”. See
Swiss II, 274 F.3d at 625–27.

Such diligence requires a

plaintiff to “present facts to the court which show why
jurisdiction would be found if discovery were permitted”. Id. at
626.

Here, plaintiff has made no such presentation during this

extensive litigation.

For that reason, jurisdictional discovery

is unwarranted.
ORDER
For the foregoing reasons, the motion to dismiss filed by
defendant Huntsman International LLC (Docket No. 92) is ALLOWED
and The D.S. Brown Company’s motion for reconsideration (Docket
NO. 96) is DENIED.

The claims against Huntsman International

LLC are hereby DISMISSED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge

Dated April 28, 2021
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