MacCormack et al v. The Adel Wiggins Group et al

Filing 282

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motions of defendant Federal-Mogul Asbestos Injury Trust, as successor the former Vellumoid Division of Federal-Mogul and as successor to Felt-Products Manufacturing Co., to dismiss for lack of personal jurisdiction [Docs. #271, 272] are granted.. Signed by District Judge Carol E. Jackson on 8/5/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BERJ HOVSEPIAN,

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Plaintiff,
vs.
CRANE CO., et al.,
Defendants.

Case No. 4:16-CV-414-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motions of defendant Federal-Mogul
Asbestos Injury Trust, as successor to the former Vellumoid Division of Federal-Mogul
and as successor to Felt-Products Manufacturing Co. (collectively, “Federal-Mogul”),
to dismiss for lack of personal jurisdiction.

Plaintiff has not responded to the

motions, and the time allowed for doing so has expired.
I.

Background

According to the complaint, plaintiff was a civilian employee of the United
States Navy from 1958 until 1964, in Boston, Massachusetts. Compl. ¶ 1.

He was

also “employed with Kambien” from 1966 until 1969 and “employed with Polaroid”
from 1969 until 1997, in Cambridge, Massachusetts. Id.

“During the course of [his]

employment at [those] locations . . . , during non-occupational work projects and/or
in other ways, [he] was exposed to and inhaled, ingested or otherwise absorbed
asbestos fibers and/or asbestiform fibers emanating from certain products [he] was
working with and around[,] which were manufactured, sold, distributed or installed by
the [d]efendants and each of them.” Id. ¶ 2.

Plaintiff alleges he was “first exposed

to and inhaled, ingested or otherwise absorbed asbestos fibers and/or asbestiform
fibers emanating from certain products [he] worked with or around outside the State
of Missouri . . . .”

Id. ¶ 3 (emphasis added).

The complaint names seventy-eight defendants.

Plaintiff contends that all of

the defendants are “amenable to suit in the State of Missouri by reason [of] having
sold, distributed and/or installed the aforementioned asbestos-containing products in
Missouri or by reason of having placed the same into the stream of commerce for use
in Missouri, and by reason of having committed a tortious act against [p]laintiff in
Missouri.”

Id. ¶ 7.

However, the complaint does not identify any connection

between plaintiff and the sale of Federal-Mogul’s products in Missouri or any tortious
act committed against plaintiff in this state.
According to the complaint, Federal-Mogul is not incorporated in nor does it
maintain its principal place of business in Missouri.

The complaint also alleges that

Federal-Mogul is not registered to do business in Missouri.

The same is true of the

entities to which Federal-Mogul is the successor.
II. Legal Standard
“When personal jurisdiction is challenged by a defendant, the plaintiff bears the
burden to show that jurisdiction exists.”

Fastpath, Inc. v. Arbela Techs. Corp., 760

F.3d 816, 820 (8th Cir. 2014) (citations omitted).

“To successfully survive a motion

to dismiss challenging personal jurisdiction, a plaintiff must make a prima facie
showing of personal jurisdiction over the challenging defendant.”
omitted).

Id. (citations

“A plaintiff’s prima facie showing must be tested, not by the pleadings

alone, but by affidavits and exhibits supporting or opposing the motion.”
(quotation marks and citation omitted).

Id.

“Where no hearing is held on the motion, [a

court] must view the evidence in a light most favorable to the plaintiff and resolve
factual conflicts in the plaintiff’s favor; however, the party seeking to establish the
court’s personal jurisdiction carries the burden of proof and that burden does not shift
to the party challenging jurisdiction.”

Id. (citation omitted).
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III. Discussion
The allegations in the complaint foreclose exercise of personal jurisdiction over
Federal-Mogul.

The Court need not consider any evidence to prove the allegations in

the complaint because even if all of the allegations in the complaint are true, no
personal jurisdiction exists over Federal-Mogul in Missouri.

Under the facts alleged,

Federal-Mogul would not be subject to general or specific jurisdiction in Missouri.
See Walden v. Fiore, 134 S. Ct. 1115 (2014) (describing specific jurisdiction); Daimler
AG v. Bauman, 134 S. Ct. 746 (2014) (delineating general jurisdiction).

By the same

measure, plaintiff pled that Federal-Mogul does not maintain a registered agent in
Missouri.

Thus, no basis exists to find Federal-Mogul has consented to the exercise

of personal jurisdiction in this state.

See Knowlton v. Allied Van Lines, Inc., 900 F.2d

1196 (8th Cir. 1990) (explaining personal jurisdiction based on consent); Mitchell v.
Eli Lilly & Co., No. 4:15-CV-1846-CEJ, 2016 WL 362441 (E.D. Mo. Jan. 29, 2016)
(applying Knowlton). Therefore, the Court will grant the motions to dismiss for lack
of personal jurisdiction.

See Fed. R. Civ. P. 12(b)(2).

Accordingly,
IT IS HEREBY ORDERED that the motions of defendant Federal-Mogul
Asbestos Injury Trust, as successor the former Vellumoid Division of Federal-Mogul
and as successor to Felt-Products Manufacturing Co., to dismiss for lack of personal
jurisdiction [Docs. ##271, 272] are granted.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 5th day of August, 2016.

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