GRIMES et al v. AT&T et al

Filing 132

MEMORANDUM/ORDER denying w/out prejudice 99 Motion to Dismiss for Lack of Jurisdiction ; denying w/out prejudice 100 Motion to Dismiss for Lack of Jurisdiction; subject to renewal pending the completion of limited jurisdictional discovery as outlined above. Signed by Judge Kevin McNulty on 1/9/17. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ESTELLE GRIMES, et al.,
Plaintiffs,

Civ. No. 15-8466 (KM) (MAH)
MEMORANDUM & ORDER

V.

AT&T Corp., et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Defendants Asbestos Corporation Limited (“ACL”) and Bell
Asbestos Mines, LTD. (“Bell”)’ (collectively, “defendants”) have filed motions to
dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). For
the reasons stated below, the motions are DENIED as presented because
limited jurisdictional discovery is required. When such discovery is completed,
the motion may be renewed.
I.

ALLEGATIONS OF THE AMENDED COMPLAINT
The following facts are taken from the amended complaint. They

are assumed true for the purposes of this memorandum only.
Thomas Grimes died of mesothelioma, a cancer caused by
exposure to asbestos, on July 30, 2015. ACL and Bell “mined, milled,
manufactured, sold, supplied, purchased, marketed, installed and/or removed”
the “asbestos or asbestos-containing products” to which the deceased was
exposed while serving in the United States Navy and working as a cable twister
for Western Electric, Inc. (Amend. Compi.
1-4; ECF Nos. 98, 101)

There are over 20 other named defendants. “Defendants” as used herein, unless
otherwise specified, refers only to ACL and Bell.

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On October 28, 2015, his widow, Estelle Grimes, brought suit
against defendants and numerous other corporations who also mined, sold, or
distributed asbestos in New Jersey state court. On December 1, 2015, her case
was removed from state to federal court. Grimes amended her complaint on
2
August 1, 2016. ACL and Bell filed mirror-image motions to dismiss for lack of
personal jurisdiction on August 4, 2016.

2

Jurisdiction is based on Section § 1442(a)(1) of Title 28 of the United States
Code, which allows federal officers or persons “acting under” a federal officer to remove
to federal court so long as they have a “colorable” federal defense. See, e.g. Mesa v.
California, 489 U.S. 121, 129 (1989). This is an exception to the well-pleaded
complaint rule. Jefferson County v. Acker, 527 U.S. 423, 430-3 1 (1999) (“Suits against
federal officers are exceptional.
Under the federal officer removal statute, suits
against federal officers may be removed despite the nonfederal cast of the complaint;
the federal question element is met if the defense depends on federal law.”) Here,
defendant Crane Corp. (“Crane”)—who does not join in Bell and ACL’s motion to
dismiss—asserts that it can avail itself a government contractor defense. See Boyle v.
United Techs Coip., 487 U.S. 500 (1988).
.

.

.

To support that defense (and by extension federal jurisdiction), Crane offers the
affidavits of retired Rear Admiral David P. Sargent, Jr., Anthony D. Pantaleoni, the
Vice President of Environment, Health and Safety Co., and Dr. Samuel Forman M.D.,
alongside its removal motion. (See ECF No. 1) These affidavits suggest that (1) Crane
manufactured its products in accordance with the precise specifications approved by
the Navy; (2) the Navy reviewed and approved the warnings, labels, and safety
manuals that accompanied Crane’s products; and (3) the Navy possessed at least as
much knowledge regarding the hazards of asbestos as Crane.
Although no party has (yet) challenged Crane’s claim to a governmental
contractor defense, I am mindful that the Court has an “independent obligation to
satisfy themselves of jurisdiction when it is in doubt.” Nesbit v. Gears Unlimited, Inc.,
247 F.3d 72, 76-77 (3d Cir. 2003). At this early stage, I have no such doubt; Crane
has presented sufficient evidence to establish a colorable federal defense for the
purposes of federal court jurisdiction. Leite i.’. Crane Co., 749 F.3d 117, 1123 (9th Cir.
2014) (finding that Crane established a colorable claim based on a similar evidentiary
showing); Cuomo v. Crane, 771 F.3d 113, 116-17 (2d Cir. 2014) (same).
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II.

DISCUSSION
A.

Standard
Once a defendant files a motion to dismiss for lack of personal

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff
bears the burden of establishing sufficient facts to show that jurisdiction
exists. Marten v. Godwin, 499 F.3d 290, 295-96 (3d Cir. 2001). While a court
must accept the plaintiffs allegations as true and construe disputed facts in
favor of the plaintiff, Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir.
2002), the court must still examine any evidence presented with regard to
disputed factual allegations. See, e.g., Eurofirts Pharma US Holdings v.
BioAlliance Pharma SA, 623 F.3d 147, 155-56 (3d Cir. 2010) (examining the
evidence supporting the plaintiffs allegations); Patterson v. FB1 893 F.2d 595,
603-04 (3d Cir. 1990).
The plaintiff “need only establish a prima facie case of personal
jurisdiction.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
Nevertheless, a plaintiff may not “rely on the bare pleadings alone” in order to
withstand a motion to dismiss for lack of personal jurisdiction; “[o]nce the
motion is made, plaintiff must respond with actual proofs, not mere
allegations.” Patterson, 893 F.2d at 604 (internal citations omitted); Time Share
Vacation Club, 735 F.2d at 66 n.9.
There are two kinds of personal jurisdiction that allow a district
court to hear a case involving a non-resident defendant: general and specific.
See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 4 14-415 &
n. 9 (1984). A court may exercise general jurisdiction when a defendant has
“continuous and systematic contacts” with the forum state. Id. at 415 n. 9. The
defendant’s “contacts need not relate to the subject matter of the litigation,”
Amerzay, LLC v. Ameriay Payroll, Ltd., 334 F. Supp. 2d 629, 633 (D.N.J.
2004), but must rise to “a ‘very high threshold of business activity.’” Id. at 633
(quoting Compagnie des Bauxites de Guinea v. Ins. Co. of N. Am., 651 F.2d 877,
891 (3d Cir. 1981)). The facts required to establish sufficient contacts for
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general jurisdiction must be extensive and persuasive. Reliance Steel Prods. Co.
v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982). In other
words, the plaintiff must demonstrate “significantly more than minimum
contacts.” Provident Nat’l Bank, 819 F.2d at 437.
In contrast to general jurisdiction, specific jurisdiction relies on the
defendant’s forum-related activities that give rise to the plaintiffs claims.
Establishing specific jurisdiction involves a three-part inquiry: (1) whether the
defendant purposefully directed its activities at the forum; (2) whether the
litigation arises out of or relates to at least one of the contacts; and (3) whether
the exercise of jurisdiction otherwise comports with traditional notions of fair
play and substantial justice. O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d
312, 317 (3d Cir. 2007). The defendant need not be physically located in the
state while committing the alleged acts. Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476 (1985). Nor is specific jurisdiction defeated merely because the
bulk of harm occurred outside the forum. Keeton v. Hustler Magazine, Inc., 465
U.S. 770, 780 (1984). A single act may satisfy minimum contacts if it creates a
substantial connection with the forum. Burger King, 471 U.s. at 476 n. 18.
B.

Analysis
In support of its motion to dismiss, Bell and ACL submit identical

declarations from Richard Dufour, Counsel for ACL and Bell. Dufour states
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that (1) defendants are Canadian corporations not registered to do business in
New Jersey; (2) that they do not have appointed agents, offices, facilities, or
bank accounts in New Jersey; (3) that they have never received mail or
telephone calls in New Jersey; (4) that they have never initiated any lawsuit in
New Jersey, and (5) that “all sales of asbestos were made F.O.B., Thetford
4

Both declarations predate Grimes’s complaint by nearly five years. (Jeremiah
Decls. Exs. H, ECF. Nos. 99, 100)
4
“F.O.B., or ‘free on board,’ is a mercantile term that means that the seller must
deliver the goods to a named vessel and that the seller bears the risk of loss up until
the point of delivery.” Am Estates Wines, Inc., Kreglinger Wine Estates Pty., LTD, Civ.
3

4

Mines, Quebec, Canada.” (See Jeremiah Decis. Exs. H, ECF. Nos. 99, 100).
Grimes counters that this argument “has been rejected each and every time it
has been proffered in the State of New Jersey.” (P1. Oppo. Br. 4, ECF No. 104).
Grimes specifically points to one unpublished New Jersey appellate court
opinion involving ACL and three New Jersey trial court orders denying a motion
to dismiss for lack of personal jurisdiction filed by either ACL or Bell. (Geier
Deci. Exs. A-B, ECF No. 104-1)
These authorities, however persuasive, fail to shore up the factual
gaps in Grimes’s pleading. The orders, for example, do not explicate the facts
and legal reasoning on why they rely. The appellate decision, Buttitta v. Allied
Signal, Inc., largely defers to an unreported (and, despite this Court’s best
efforts, undiscoverable) opinion of this Court from 1976, from which it quotes:
It seems without question that in personam
jurisdiction exists with respect to all the defendants
at least to the extent that they may be held liable for
any damages proven to be the result of their placing
asbestos into the stream of commerce in New Jersey.
Notwithstanding the fact that all sales were made FOB
Canada, each defendant knew or should have known
that their product would be utilized in New Jersey, as
evidenced by their methods of shipment and billing
procedures. Thus
it is well within the
‘permissible limit of due process’ to require these
defendants to defend themselves against this action by
a New Jersey corporation’s employees for alleged
wrongs arising out of their shipment of asbestos into
this forum.
.

.

.

Dkt. No. A-5263-07T1, A-5268-07T1, 2010 N.J. Super. Unpub. Lexis 703, at
*58 (N.J. Sup. Ct. App. Div. Apr. 2010) (citing Austin v. Johns-Manville
Prods.
Corp., No. 75-754 (D.N.J. Dec. 1, 1976).5 In short, I do not have—although it is

No. 07-2474, 2008 U.S. Dist. Lexis. 23494, at *4 n. 2 (D.N.J. Mar. 25, 2008) (citing
Black’s Law Dictionary).
Apparently this Court has denied a motion to dismiss for lack of personal
jurisdiction made by either ACL or Bell on at least two other occasions, Argeskie, et.
al., v. Johns-Manville Products Corp, et al., Civ. No. 76-735, and Alessi, et. al. v. Johns5

5

clear that they exist—the facts (i.e., the billing and shipping methods and
procedures) on which at least the Buttitta court based its conclusion that ACL
or Bell reasonably knew or should have known that their asbestos would end
up in New Jersey.
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“Although the plaintiff bears the burden of demonstrating facts
that support personal jurisdiction, courts are to assist the plaintiff by allowi
ng
jurisdictional discovery unless the plaintiff’s claim is ‘clearly frivolous.”’ Toys
“1?” Us, Inc., Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003) (internal citatio

ns

omitted). Grimes’s allegations here are clearly not frivolous. Indeed, while
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somewhat vague, Grimes has submitted deposition testimony taken in the
Austin v. Johns-Manville case in which the then-Vice President and Secreta
ry of
ACL testified that he dealt with the “Johns Manville plant” in “Manville,
New
Jersey” on a “direct basis.” (Geier Deci. Ex. C)
Accordingly, I will not grant the motion to dismiss based on lack of
personal jurisdiction, but will deny it, subject to renewal after some limited
discovery directed towards the jurisdictional issues. I note that most, if
not all,
of the information pertinent to this issue presumably would be in ACL or Bell’s
control, and Grimes should have a fair opportunity to test defendants’ oft

Manville Products, Inc., Civ. No. 76-1817. The Court has been unable to locate
a record
of either decision.

Grimes does not argue that these authorities preclude or estop ACL or Bell from
litigating the issue of personal jurisdiction in New Jersey. See, e.g., Wright Miller,
&
17
Fed. Prac. & Proc. § 4416 (3rd ed) (summarizing that “issue preclusion arises in
a
second action on the basis of a prior decision when the same ‘issue’ is involved
in both
actions [and] the issue was ‘actually litigated’ in the first action, after a full and
fair
opportunity for litigation, the issue was ‘actually decided’ in the first action, by
a
disposition that is sufficiently ‘fmal,’ ‘on the merits,’ and ‘valid.”).
In addition to the New Jersey authorities discussed above, I note that Bell and
ACL have filed—and uniformly lost—this exact motion in a number of federal
courts
across the country. See, e.g., Morris v. Asbestos Corp., 662 F. Supp. 930 (S.D.
md.
1986); Almond v. Asbestos Corp., No. 86-0945, 1986 U.S. Dist. Lexis. 17106, at *4
(E.D. Pa. Dec. 1, 1986) (collecting over twenty motions filed in the Eastern Distric
t of
Pennsylvania alone); Hover v. Asbestos Corp., 678 F. Supp. 370 (D. Conn. 1986);
Smith
v. GAF Corp., 583 F. Supp. 1101 (S.D. Ohio 1984).
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asserted claims of lack of personal jurisdiction. Given the frequency with which
ACL and Bell have litigated this issue in this and other courts, discovery
concerning defendants’ contacts with New Jersey should be easy to find. Such
discovery in any case must be focused on the existence, or not, of ties to New
Jersey that would justify the exercise of personal jurisdiction.

ORDER
THIS MATTER having been opened to the Court by defendants
Bell Asbestos Mines, LTD. and Asbestos Corporation Limited’s motions to
dismiss pursuant to Fed. R. Civ. P. 12(b)(2), (ECF Nos. 99 and 100); and
plaintiffs Estelle Grimes, Individually and as Administrator for the Estate of
Thomas Grimes, and as Individual Heirs of the Estate of Estelle Grimes, having
filed oppositions, (ECF Nos. 103, 104); and the Court having reviewed the
submissions and come to a decision without oral argument, see L. Civ. R.
9.1 (1); for good cause shown;
IT IS this 9th day of January, 2016
ORDERED that defendants’ motions to dismiss for lack of personal
jurisdiction are DENIED without prejudice subject to renewal pending the
completion of limited jurisdictional discovery as outlined above.

KEVIN MCNULTY
United States District Judge

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