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

Filing 90

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons, the motion to dismiss filed by defendant Huntsman International LLC (part, but not all, of Docket No. 36 ) is ALLOWED but the motion to dismiss filed by White-Schiavone, JV, J.F. White Contracting Co. and Schiavone Construction Co., LLC (Docket No. 22 ) is DENIED.All claims asserted against Huntsman are hereby dismissed.So ordered.(Vieira, Leonardo)

Case 1:19-cv-30095-NMG Document 90 Filed 11/05/20 Page 1 of 19

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 the materials supplier, The D.S. Brown Company (“D.S.
Brown” or “plaintiff”), provided the builder, White-Schiavone,
J.V. (“White-Schiavone”), with a certain kind of concrete that
purportedly was defective.

Plaintiff 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 Huntsman International LLC
(“Huntsman”), a materials manufacturer, (collectively “the
defendants”) to determine the contractual responsibilities of
each party with respect to the defective concrete.

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In response, the Schiavone defendants have filed a joint
motion to dismiss for failure to state a claim (Docket No. 22)
and defendant Huntsman has filed a motion to dismiss for lack of
subject matter jurisdiction, lack of personal jurisdiction and
failure to state a claim (Docket No. 36), in which all other
defendants have joined (Docket No. 43).

In a Memorandum and

Order entered on October 29, 2020, this Court denied the motion
to dismiss for lack of subject matter jurisdiction while
retaining under advisement the other grounds for dismissal.

The

Court addresses the remaining pending motions here and will, for
the following reasons, allow the motion filed by Huntsman but
deny the motion filed by the Schiavone defendants.
I.

Background
The Court set forth the convoluted procedural history and

the factual background of this case in greater detail in its
recent Memorandum and Order, see Docket No. 88, but focuses,
here, on the background relevant to the pending motions.
A. The Parties and Procedural History
Plaintiff 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”) to
replace the bridge decking on the I-91 viaduct in Springfield,
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Massachusetts (“the Project”).

White-Schiavone is comprised of

two joint 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.
Plaintiff commenced this action in the Western Division of
this Court on July 2, 2019 and subsequently amended its
complaint twice.

In the Second Amended Complaint (“SAC”),

plaintiff alleges eight counts.

Count I seeks a declaratory

judgment to determine the contractual responsibilities of each
party in connection with the purportedly defective delcrete.
Counts II through VIII are brought against Huntsman, asserting
that it supplied plaintiff with defective delcrete and, as a
result, breached its implied warranty of merchantability (II);
was grossly negligent (III); breached its contract (IV); was
negligent (V); must, under common law indemnification
principles, indemnify plaintiff (VI); breached its implied
warranty of fitness (VII); and violated M.G.L. c. 93A, §§ 2 and
11 (VIII).
Defendants have filed motions to dismiss the SAC in its
entirety.

White-Schiavone and its joint venture partners have

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

White-Schiavone and its partners have joined

Huntsman’s motion.

This Court recently denied that motion, in

part, with respect to subject matter jurisdiction.
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).
Soon thereafter, White-Schiavone filed a complaint against
D.S. Brown in the Massachusetts Superior Court, seeking to hold
D.S. Brown liable for the harm caused by the defective 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 the case to the Western Division of this Court and filed
a counterclaim and third-party complaint against WhiteSchiavone, J.F. White, Schiavone and Huntsman, asserting the
same claims as those alleged in the SAC.

A few weeks after

removal, plaintiff moved to consolidate the two cases and WhiteSchiavone simultaneously filed a motion to transfer both cases
to the Eastern Division of the District of Massachusetts.

The

motion to transfer was allowed on April 17, 2020, bringing both
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cases to this Session of this Court.

The motion to consolidate

was allowed on October 29, 2020.
B. The Facts
As part of the Project, White-Schiavone executed 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 under the I-91 viaduct bridge
deck.

Plaintiff asserts that it did not itself manufacture the

delcrete but instead purchased it from Huntsman International
LLC pursuant to independent Purchase Orders.

The Purchase

Orders directed Huntsman to ship the delcrete to D.S. Brown in
Ohio in May, July, and August, 2017, after which plaintiff
forwarded the material to White-Schiavone in Massachusetts.
By mid-2017, White-Schiavone had received shipments of
delcrete from plaintiff and began using it 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.
failures.

It is unclear what caused the

Plaintiff submits that they were caused by either the

storage, handling or installation procedures of White-Schiavone
or the manufacturing process of Huntsman.
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In or about December, 2017, plaintiff 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.

Plaintiff contends

that White-Schiavone subsequently threatened to file suit
against it for supplying defective delcrete, causing plaintiff
to initiate this action for declaratory judgment.
II.

Huntsman’s Motion to Dismiss for Lack of Personal
Jurisdiction
A. Huntsman’s Argument
Huntsman alleges that plaintiff has failed to make a prima

facie showing that this Court has authority to exercise
jurisdiction over the Texas-based company because it has
proffered no evidence to establish that Huntsman had contacts
with Massachusetts that relate to this litigation.
Huntsman submits that the SAC does not state a claim for
general jurisdiction because it does not allege that Huntsman
has any presence in Massachusetts, such as offices, facilities,
real or personal property or employees, let alone a presence
that renders the company “at home” in the Commonwealth.

Indeed,

the only office location of Huntsman that is mentioned in the
SAC is its principal place of business, in Houston, Texas.

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Huntsman also contends that plaintiff has fallen short of
establishing specific jurisdiction because none of the three
shipments of delcrete at issue in this case was shipped by
Huntsman to Massachusetts.

Instead, as alleged in the SAC and

confirmed by the incorporated Purchase Orders, the subject
materials were shipped by Huntsman from Texas directly to D.S.
Brown in Ohio.

Furthermore, Huntsman asserts that it was not a

party to the Contract between White-Schiavone and D.S. Brown.
Accordingly, it avers that
there is no basis for finding that Huntsman purposefully
availed itself of the protections of Massachusetts law.
It is irrelevant, Huntsman stresses, that its product ended up
in Massachusetts because the final destination of the delcrete
was due only to the unilateral action of D.S. Brown.
D.S. Brown responds that the Court should exercise
1) general jurisdiction over Huntsman because the company is
registered to do business in Massachusetts and/or 2) specific
jurisdiction over Huntsman because, in 2016, it delivered
shipments of delcrete directly to White-Schiavone in
Massachusetts.

Although plaintiff did not mention those

shipments in the SAC, it now avers that the 2016 delcrete also
caused injury that was suffered in Massachusetts.

White-

Schiavone has responded, however, that it is not seeking to

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recover any damages resulting from delcrete received by the
joint venture prior to 2017.
With respect to the 2016 shipment of delcrete, Huntsman
rejoins that 1) the shipment was not mentioned in the SAC, 2) it
has nothing to do with this dispute and 3) the destination of
that shipment was determined exclusively by D.S. Brown.
B. Legal Standard
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, the Court will

decide a motion to dismiss for lack of personal jurisdiction
without first holding an evidentiary hearing, the Court 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.
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) (explaining that, in order for a plaintiff to
make a prima facie showing of jurisdiction, it “ordinarily
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cannot rest upon the pleadings but is obliged to adduce evidence
of specific facts.”).
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 statutorily
permitted and 2) coheres with the Due Process Clause of the
Fourteenth Amendment of the United States Constitution. Id.
Because the Massachusetts long-arm statute, M.G.L. c. 223A, § 3,
extends jurisdiction to the limits of the Constitution, the
Court proceeds directly to the constitutional analysis. See
Adelson v. Hananel, 510 F.3d 43, 49 (1st Cir. 2007).
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 the subject
defendant has “minimum contacts” with Massachusetts such that
the exercise of personal jurisdiction over it accords with
“traditional notions of fair play and substantial justice.” Id.
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).

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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
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)).
Here, plaintiff has not established that this Court has
general jurisdiction over Huntsman because it has provided no
evidence showing that the Texas-based company has engaged in
continuous or systematic activity in Massachusetts.

Missing

from plaintiff’s proffers is any evidence that Huntsman has an
office, property or even employees in the state.

Instead, it

submits only that Huntsman is registered to do business here, a
fact that, without more, fails to create the exceptional
circumstance required to render Huntsman “essentially at home”
in Massachusetts and fails to convince this Court that
jurisdictional discovery is warranted. Negron-Torres, 478 F.3d
at 27 (noting that jurisdictional discovery was unwarranted

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because the plaintiff failed to make a colorable case for
personal jurisdiction).
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
plaintiff with the forum state. Harlow v. Children’s Hosp., 432
F.3d 50, 58 (1st Cir. 2005).
In analyzing such 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 concerns 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

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is improper if the “defendant’s forum-state contacts seems
attenuated and indirect.” Harlow, 432 F.3d at 61.
Here, the claims underlying this litigation do not relate
to any contacts Huntsman has had with Massachusetts.

As alleged

in the SAC and conceded by White-Schiavone, only three shipments
of delcrete that were sent by Huntsman are at issue in this
action and all of them were sent in 2017 directly to D.S. Brown
in Ohio.

Thereafter, D.S. Brown unilaterally forwarded the

product to White-Schiavone in Massachusetts.

There is no

evidence demonstrating that Huntsman played any role in getting
the delcrete from Ohio to Massachusetts or that its contacts
with any party to this action extended beyond Ohio.
Although, in its opposition to Huntsman’s motion, plaintiff
proffers a Purchase Order from 2016, pursuant to which Huntsman
shipped delcrete directly to White-Schiavone in Massachusetts,
that shipment is not a subject of or even mentioned in the SAC
and is, thus, outside of the scope of this litigation.
Furthermore, White-Schiavone has submitted that it does not seek
recovery of any damages associated with the 2016 delcrete,
thereby eliminating any dispute over those shipments. See
Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995) (“The
relatedness requirement is not met merely because a plaintiff’s
cause of action arose out of the general relationship between

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the parties; rather, the action must directly arise out of the
specific contacts between the defendant and the forum state.”).
b. Purposeful Availment
In any event, plaintiff has failed to establish the second
factor concerning whether defendant’s contacts with
Massachusetts represent a “purposeful availment by defendants of
the privilege of conducting business in that State,” making any
contacts with it foreseeable and voluntary. Sawtelle, 70 F.3d at
1389, 1393; Astro-Med, Inc., 591 F.3d at 10.

Purposeful

availment is required to ensure that specific 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).
Accordingly, the place of injury is insufficient alone to
establish specific personal jurisdiction. See Walden v. Fiore,
571 U.S. 277, 290 (2014).

Furthermore,

[t]he placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully
directed toward the forum State . . . [A] defendant’s
awareness that the stream of commerce may or will sweep the
product into the forum State does not convert [that] into
an act purposefully directed toward the forum State.
Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cnty.,
480 U.S 102, 112 (1987).

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Although the Court is cognizant that resolving this entire
dispute in one forum would be more efficient for all parties, it
will not fabricate personal jurisdiction to achieve that goal.
It finds instead that, in manufacturing, selling and shipping
the subject delcrete, Huntsman did not purposefully avail itself
of the privilege of conducting business in Massachusetts.

Nor

did it purposefully direct any activities toward this state when
it executed the three Purchase Orders with an Ohio corporation
and sent three shipments of delcrete to Ohio.

That the delcrete

ended up in Massachusetts was the result of 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.”).
The analysis is unaltered by the fact that, when Huntsman
placed the delcrete into the stream of commerce, the Texas
company could have expected the material to be delivered to
Massachusetts.

Such an expectation is insufficient to be deemed

purposefully directing its product toward Massachusetts. See
Asahi Metal Indus., 480 U.S. at 112 (explaining that the
defendant’s awareness that its product may end up in the forum
state is not enough to establish purposeful availment).

Nor is

it altered by the fact that the injury to White-Schiavone was
sustained in Massachusetts because the place of the injury alone
is insufficient to establish specific jurisdiction. See Walden
v. Fiore, 571 U.S. 277, 290 (2014) (“The proper question is not
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where the plaintiff experienced a particular injury or effect
but whether the defendant’s conduct connects him to the forum in
a meaningful way.”).
c. Reasonableness
The final factor to consider is whether imposing
jurisdiction on the defendant would be reasonable, considering
1) the burden on the defendants to appear, 2) the forum state’s
interest in adjudicating the dispute, 3) plaintiff’s interest in
convenient and effective relief, 4) the judicial system’s
interest in obtaining efficient resolution of controversies and
5) the common interest of all sovereigns in promoting
substantive social policies. See Burger King Corp., 471 U.S. at
477.

These considerations are not a checklist but should

instead be used “to put into sharper perspective the
reasonableness and fundamental fairness of exercising
jurisdiction . . .” See Pritzker, 42 F.3d at 64.

Taken

together, they “may tip the constitutional balance” in close
calls. Id.
Because plaintiff has failed to establish relatedness and
purposeful availment, the Court need not determine whether
exercising personal jurisdiction over Huntsman would be
reasonable. See Phillips Exeter Academy, 196 F.3d at 288.
Having determined that the Court lacks both general and specific

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jurisdiction over Huntsman, it will allow Huntsman’s motion to
dismiss all claims asserted against the Texas-based company.
III. Defendants’ Motions to Dismiss for Failure to State a Claim
A. Legal Standard
To survive a motion under Fed. R. Civ. P. 12(b)(6), the
subject pleading must contain sufficient factual matter to state
a claim for relief that is actionable as a matter of law and
“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

A claim is facially plausible if, after accepting as

true all non-conclusory factual allegations, the court can draw
the reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).

A court also may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Ocasio-Hernandez, 640 F.3d at 12.

Rather, the

relevant inquiry focuses on the reasonableness of the inference
of liability that the plaintiff is asking the court to draw. Id.
at 13.
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Here, to the extent the parties rely on documents that
extend beyond the facts alleged in the complaint or susceptible
to judicial notice and documents incorporated by reference,
those documents are excluded from the Court’s consideration of
the Schiavone defendants’ motion to dismiss for failure to state
a claim.
B. Declaratory Judgment
Under 28 U.S.C. § 2201, jurisdiction in a declaratory
judgment action is proper if there exists an “actual
controversy” between the parties. See Maryland Casualty Co. v.
Pacific Coal & Oil Co., 312 U.S. 270, 272-73 (1941) (“[T]he
facts alleged, under all the circumstances, [must] show that
there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”).

The Court

has complete discretion in determining “whether and when” to
entertain a claim for a declaratory judgment. See U.S. Liability
Ins. Co. v. Selman, 70 F.3d 684, 693 (1st Cir. 1995).
C. Application
D.S. Brown seeks a judgment against the Schiavone
defendants declaring 1) the parties’ rights and obligations
under the Contract and 2) which party is responsible for the
damages, if any, resulting from the defective delcrete.

It

seeks specifically a judgment declaring that D.S. Brown is
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neither in breach of the Contract nor responsible for the
defective delcrete.
White-Schiavone contends that plaintiff has failed to state
a claim for declaratory relief because it has asserted no
factual allegations detailing how White-Schiavone improperly
handled, stored or installed the delcrete.

To state a claim for

relief, however, D.S. Brown need not plead with certainty how
White-Schiavone caused the alleged damages but merely needs to
plead facts sufficient to state a plausible claim for
declaratory relief.

D.S. Brown has done that by alleging that

1) the delcrete caused the expansion joints to fail, 2) WhiteSchiavone was responsible for handling, storing and installing
the delcrete and 3) its procedures for doing so contributed to
the failure of some of the expansion joints.

Those allegations,

when accepted as true, allow for the plausible inference that
the failure of the expansion joints arose during the handling,
storage or installation of the delcrete, thereby entitling D.S.
Brown to a declaratory judgment.
In any event, plaintiff’s allegations, in most material
respects, are reciprocal to the allegations contained in WhiteSchiavone’s complaint which was initially filed in Massachusetts
state court but has since been consolidated with this action.
See Bunge Oils, Inc. v. M & F Marketing Development, LLC, No.
03-11559-GAO, 2005 WL 629489, at *3 (D. Mass. Mar. 15, 2005)
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(denying a motion to dismiss a counterclaim for declaratory
judgment because it “in most respects is the mirror image of
count two of [plaintiff’s] amended complaint.”).

Not only does

that complaint demonstrate that an actual controversy exists
here but it also renders dismissal of D.S. Brown’s petition for
a declaratory judgment moot because the crossclaims of the
parties are before the Court in any event.

Accordingly, the

Court will deny the Schiavone defendants’ motion to dismiss for
failure to state a claim for declaratory relief.
ORDER
For the foregoing reasons, the motion to dismiss filed by
defendant Huntsman International LLC (part, but not all, of
Docket No. 36) is ALLOWED but the motion to dismiss filed by
White-Schiavone, JV, J.F. White Contracting Co. and Schiavone
Construction Co., LLC (Docket No. 22) is DENIED.
All claims asserted against Huntsman are hereby dismissed.
So ordered.
\s\ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge

Dated November 5, 2020

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