THOMAS-FISH v. AVBORNE ACCESSORY GROUP, INC et al

Filing 72

OPINION. Signed by Judge Renee Marie Bumb on 6/4/2019. (dmr)

[Dkt. No. 58, 60]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

HELEN THOMAS-FISH, Individually
and as Executrix of the Estate
of Robert C. Fish,
Plaintiff,

Civil No. 17-cv-10648 RMB/KMW

v.

OPINION

AETNA STEEL PRODUCTS CORP., et
al.,
Defendants.

LEVY KONIGSBERG, LLP
By: Amber Rose Long, Esq.
Joseph J. Mandia, Esq.
800 Third Avenue, 11th Floor
New York, New York 10022
Counsel for Plaintiff

McGIVNEY, KLUGER & COOK, P.C.
By: William D. Sanders, Esq.
18 Columbia Turnpike, 3rd Floor
Florham Park, New Jersey 07932
Counsel for Defendant Sonic Industries, Inc.

DISTRICT JUDGE RENÉE MARIE BUMB:
This matter comes before the Court upon Defendant Sonic
Industries, Inc.’s Motion to Dismiss for lack of personal
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) [Docket No.
60].

The issue raised by the motion is whether Plaintiff Helen

Thomas-Fish has pled sufficient facts supporting this Court’s
exercise of specific personal jurisdiction over Defendant Sonic
Industries on a successor liability theory.
that Plaintiff has not.

The Court holds

Accordingly, the Motion to Dismiss will

be granted. 1
I.

BACKGROUND
The Complaint sparsely alleges “Plaintiff’s Decedent

[Robert Fish] was exposed to asbestos while working in 1960 as a
civilian at New York Shipbuilding and Drydock located in Camden,
New Jersey[.]”

(Compl. ¶ 4)

Robert Fish died in 2016,

allegedly from complications of mesothelioma caused by exposure
to asbestos.

(Id. ¶ 2)

The Complaint identifies a laundry list of Defendants,
“[o]ne, some or all” of whom are alleged to be “manufacturers,
suppliers, installers or distributors of asbestos fibers, dust,
minerals, particles and other finished and unfinished asbestoscontaining products to which Mr. Fish was exposed and/or are
otherwise liable for injuries resulting from work performed
and/or products supplied by the joiner contractor that installed
asbestos-containing paneling during the construction of the NS
Savannah at NY Ship [sic] in Camden, New Jersey.”

1

(Compl. ¶ 6)

In light of the disposition of this motion, Plaintiff’s Motion
to Stay the case [Docket No. 58] will be denied as moot, as the
only remaining Defendant to this suit, Aetna Steel Products
Corp., has not entered an appearance in this case.
2

One such Defendant is “RBC Sonic,” which Defendant Sonic
Industries asserts is not a legal entity but a name
“occasionally used informally by Sonic Industries, Inc.
employees.”

(Feeney Decl. ¶ 20)

It is undisputed for purposes of the instant motion that
Sonic Industries is not subject to general jurisdiction in the
State of New Jersey.

Sonic Industries is incorporated in

California and maintains its principal place of business in
Connecticut.

(Feeney Decl. ¶¶ 6-7)

Plaintiff served the

Summons and Complaint in this case upon Sonic Industries at its
manufacturing facility located in Torrance, California.

(Id. ¶

8)
II.

LEGAL STANDARD
On a motion to dismiss for lack of personal jurisdiction

under Federal Rule of Civil Procedure 12(b)(2), the plaintiff
bears the burden of establishing the court’s jurisdiction over
the defendant.

Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93,

97 (3d Cir. 2004).

Although the plaintiff must ultimately prove

personal jurisdiction by a preponderance of the evidence, such a
showing is unnecessary at the early stages of litigation.
Mellon Bank (E.) PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217, 1223
(3d Cir. 1992).

Instead, the plaintiff must “present[ ] a prima

facie case for the exercise of personal jurisdiction by
establishing with reasonable particularity sufficient contacts

3

between the defendant and the forum state.”
(citations omitted).

Id. at 1223

Once the plaintiff meets his or her

burden, the burden shifts to the defendant to establish the
presence of other considerations that would render the exercise
of personal jurisdiction unreasonable.

Carteret Sav. Bank, FA

v. Shushan, 954 F.2d 141, 150 (3d Cir. 1992) (citation omitted).
III. ANALYSIS
It is undisputed that Sonic Industries, Inc. was not
incorporated until 1966, therefore it “did not exist in 1960.”
(Feeney Decl. ¶¶ 5-6).

Thus, it must be that Plaintiff does not

assert that Sonic Industries, itself, “manufacture[d],
supplie[d], installe[d] or distribut[ed]” any asbestoscontaining product to which Mr. Fish was exposed, but rather,
that Sonic Industries is “otherwise liable for injuries
resulting from work performed and/or products supplied by the
joiner contractor that installed asbestos-containing paneling.”
(Compl. ¶ 6)
How Sonic Industries is alleged to be “otherwise liable” is
not set forth in the Complaint, nor does the Complaint contain
any allegations as to personal jurisdiction.

In opposition to

the instant motion however, Plaintiff asserts that Sonic
Industries is subject to personal jurisdiction in New Jersey “as
successor to the joiner contractor that performed the work that
injured Mr. Fish.”

(Opposition Brief, p. 8)

4

It is not clear

whether any of the presently-named Defendants to this suit are
the unnamed predecessor joiner contractor of which Plaintiff
speaks. 2
While a Court may assert specific personal jurisdiction
over a defendant on a successor liability theory, in this case,
the facts pled in Plaintiff’s Complaint do not make a prima
facie showing 3 of this Court’s personal jurisdiction over Sonic
Industries.

To impute the jurisdictional contacts of one

corporate entity to another corporate entity, Plaintiff must
plead facts supporting a plausible conclusion that the alleged
successor entity is a “‘mere continuation’” of, is “‘the same’”
as, or “‘is not distinct from,’” the alleged predecessor entity.

2

Perhaps all of the presently-named Defendants are suspected to
be possible successors to the unnamed joiner contractor.
Plaintiff’s opposition brief vaguely and unhelpfully asserts
that “one, some or all of the named defendants are jointly
and/or individually liable as the successor to the joiner
contractor.” (Opposition Brief, p. 8) At a different point in
the brief, Plaintiff explains, “Plaintiff’s Complaint named as
defendants the entities that Plaintiff could identify from the
information publicly available as those that appear to be
successor(s) to the joiner contractor on the N.S. Savannah.”
(Id. p. 13) (emphasis added). Plaintiff does not specifically
identify the publicly available information she states she
consulted in drafting her Complaint.
3

Because a Rule 12(b)(2) motion “is inherently a matter which
requires resolution of factual issues outside the pleadings,”
the jurisdictional allegations may be supported with sworn
affidavits or other documents. Metcalfe v. Renaissance Marine,
Inc., 566 F.3d 324, 330 (3d Cir. 2009). Plaintiff has
apparently elected to rest on the few factual allegations of the
Complaint and has not submitted any evidence in opposition to
the instant motion.
5

Ostrem v. Prideco Secure Loan Fund, LP, 841 N.W.2d 882, 898
(Iowa 2014) (collecting and quoting authorities). 4

Often, courts

will impute the jurisdictional contacts of an alleged
predecessor to an alleged successor when: (a) the alleged
successor has acquired all, or substantially all, of the assets
of the alleged predecessor, see, e.g., American Top English,
Inc. v. Golden Gate Capital, L.P., 2004 WL 407031 at *3 (N.D.
Ill. 2004), or (b) the alleged predecessor has been merged into
the alleged successor, see, e.g., Metro-Goldwyn-Mayer Studios,
Inc. v. Canal & Distribution S.A.S., 2010 WL 537583 at *5
(S.D.N.Y. 2010); see also, Williams v. Bowman Livestock Equip.
Co., 927 F.2d 1128, 1132 (10th Cir. 1991) (“successor liability
can be imposed when there is a statutory merger or
consolidation, or, in limited circumstances, a sale or transfer
of all, or substantially all, the assets of a corporation.”)

4

See also, Motor Components, LLC v. Devon Energy Corp., 338
S.W.3d 198, 204 (Tex. Ct. App. 2011); Apollo Galileo USA
Partnership v. American Leisure Holdings, Inc., 2009 WL 377381
at *7-8 (N.D. Ill. 2009); Southwest Antenna and Tower, Inc. v.
Roberts Wireless Communications, LLC, 2005 WL 8164032 at *6-7
(D.N.M. 2005); Purdue Research Foundation v. Sanofi-Synthelabo,
S.A., 338 F.3d 773, 784-85 (7th Cir. 2003); Patin v.
Thoroughbred Power Boats Inc., 294 F.3d 640, 649-50 (5th Cir.
2002); LiButti v. United States, 178 F.3d 114, 124 (2d Cir.
1999) (applying New Jersey law); Huth v. Hillsboro Ins. Mgmt,
Inc., 72 F. Supp.2d 506, 510 (E.D. Pa. 1999); Sculptchair, Inc.
v. Century Arts, Ltd., 94 F.3d 623, 630 (11th Cir. 1996); Linzer
v. EMI Blackwood Music, Inc., 904 F. Supp. 207, 213 (S.D.N.Y.
1995); Smith v. Halliburton Co., 118 N.M. 179, 186-87 (1994);
Simmers v. American Cyanamid Corp., 394 Pa. Super. 464, 484
(Sup. Ct. 1990).
6

(internal citations omitted). 5

In contrast, courts have held

that a corporate entity that is only an assignee of another
corporate entity does not acquire the assignor’s jurisdictional
contacts by virtue of the assignment alone.

See, e.g., Purdue

Research Foundation, 338 F.3d at 784-85 6; Rogers v. 5-Star Mgmt,
Inc., 946 F. Supp. 907, 913-14 (D.N.M. 1996).

In all cases, the

key inquiry is the alleged structure of the corporate
transaction between the two entities at issue.
In this case, Plaintiff has not pled a single fact relevant
to the imputation issue.

Indeed, Plaintiff has not even pled

the existence of any type of corporate transaction between Sonic
Industries and the predecessor joiner contractor. 7

Contrary to

5

There may be other circumstances supporting a successor
liability theory of specific personal jurisdiction. For
example, allegations of a fraudulent transaction might also
support a conclusion that the two allegedly separate corporate
entities are actually the same, thereby supporting imputation of
jurisdictional contacts. See Ostrem, 841 N.W.2d at 898; Patin,
294 F.3d at 648; LiButti, 178 F.3d at 124.
6

But see Lincoln Benefit Life Co. v. Wells Fargo Bank, N.A.,
2017 WL 6539244 at *5 (D.N.J. 2017) (distinguishing Purdue
Research on its facts).
7

In her brief, Plaintiff opaquely states without any
evidentiary support that “since [1960], there have been numerous
corporate name changes, spin-offs, reorganizations and other
transactions relating to” the 10 Defendants named in the
Complaint. (Opposition Brief, p. 13) Rather than helping
Plaintiff’s case, this statement underscores the Court’s point
that allegations supporting the imputation of the joiner
contractor’s contacts to Sonic Industries are lacking in this
case.

7

Plaintiff’s assertions, it is not Sonic Industries’ burden to
“provide the basis for its claim that it is not the putative
successor to the joiner contractor”

(Opposition Brief, p. 12),

it is Plaintiff’s burden to plead, in good faith and upon
reasonable investigation 8, facts supporting her theory of
successor liability personal jurisdiction.

Farino, 960 F.2d at

1223; cf. Dubois v. All American Transport, Inc., 2006 WL
2054640 at *4 (D. Or. 2006) (“plaintiff’s mere assertion on
information and belief that Elite is a successor corporation,
unsupported by any evidence, is insufficient to make [a prima
facie] showing [of jurisdictional facts].

The motion to dismiss

is therefor granted as to defendant Elite.”).

Accordingly,

Sonic Industries’ Motion to Dismiss for lack of personal
jurisdiction will be granted. 9

8

Plaintiff emphasizes that the Complaint in this case was
originally filed in New Jersey state court, and not in federal
court. However, New Jersey pleading rules, like Fed. R. Civ. P.
11(b), require factual allegations to be made with “evidentiary
support or, as to specifically identified allegations, they are
either likely to have evidentiary support or they will be
withdrawn or corrected if reasonable opportunity for further
investigation or discovery indicates insufficient evidentiary
support.” N.J. Ct. R. 1:4-8(a).
9

Plaintiff asks this Court to grant her leave to amend her
Complaint in the event that the Court concludes that she has not
sustained her burden as to personal jurisdiction over Sonic
Industries. However, a close inspection of Plaintiff’s request
reveals that Plaintiff seeks leave to amend after “additional
[jurisdictional] discovery” is completed. (Opposition Brief, p.
18) Thus, in reality, what Plaintiff is actually asking the
Court to do is grant her leave to amend if discovery provides
8

IV.

CONCLUSION
For the reasons set forth above, Defendant Sonic

Industries, Inc.’s Motion to Dismiss for lack of personal

the necessary evidentiary support for her successor liability
theory. Plaintiff, however, has provided no basis for the Court
to grant the discovery she seeks. The Third Circuit has
explained, “[i]f a plaintiff presents factual allegations that
suggest with reasonable particularity the possible existence of
the requisite contacts between the party and the forum state the
plaintiff’s right to conduct jurisdictional discovery should be
sustained.” Toys ‘R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446,
456 (3d Cir. 2003) (internal citations and quotations omitted).
As discussed above, Plaintiff has not set forth with any
particularity facts suggesting the possible existence of a
predecessor-successor relationship between the joiner contractor
and Sonic Industries. Plaintiff’s assertion in her brief that
she “has attempted from the limited information available
publicly to untangle the corporate relationships in an effort to
identify the precise putative successor(s), the corporate spinoffs, reorganizations and name changes have rendered a more
complete factual description of corporate successorship
impossible without additional discovery” (Opposition Brief, p.
18) is, under the circumstances of this case, insufficient
support for imposing burdensome discovery on Sonic Industries.
Plaintiff has been aware of Sonic Industries’ personal
jurisdiction defense since November 2017 when Sonic Industries
filed its pre-motion letter on the docket, in accordance with
this Court’s Individual Rules and Procedures. [See Docket No.
15] Thereafter, this Court addressed this issue, among others,
with the parties during oral argument on other Defendants’
Motion to Transfer Venue [see Docket No. 33], and two subsequent
telephone conferences held in September and October 2018. [See
Docket Nos. 49, 57] The Court, on several occasions, inquired
with Plaintiff as to the facts supporting personal jurisdiction
over Sonic Industries in New Jersey, yet Plaintiff was never
able to provide any specific or reliable facts. Under these
circumstances, the Court is left to conclude that the absence in
the Complaint of facts relevant to the jurisdictional analysis
results from Plaintiff’s inability to plead such facts
consistent with Fed. R. Civ. P. 11, rather than any
misunderstanding as to what the law requires Plaintiff to plead,
or mere inadvertence.
9

jurisdiction will be granted.

An Order consistent with this

Opinion shall issue on this date.

DATED: June 4, 2019
___s/ Renée Marie Bumb______
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

10