BRANSON v. AMERICAN INTERNATIONAL INDUSTRIES FOR ITS CLUBMAN BRAND, ET AL

Filing 43

MEMORANDUM OPINION, RECOMMENDATION, AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 6/7/2016; that "Defendant Brenntag North America, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction" (Dock et Entry 29 ) and "Defendant Brenntag Specialties, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction" (Docket Entry 31 ) be denied without prejudice to resolution of any viable personal jurisdiction defense(s) at trial. ORDERED that "Plaintiffs Motion for Limited Jurisdictional Discovery" (Docket Entry 34 ) is DENIED AS MOOT. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MERTON ERIC BRANSON,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AMERICAN INTERNATIONAL
INDUSTRIES, et al.,
Defendants.

1:15cv73

MEMORANDUM OPINION, RECOMMENDATION, AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on “Defendant Brenntag North
America,

Inc.’s

Motion

to

Dismiss

for

Lack

of

Personal

Jurisdiction” (Docket Entry 29); “Defendant Brenntag Specialties,
Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction” (Docket
Entry

31)

(each,

individually,

a

“Dismissal

Motion,”

and

collectively, the “Dismissal Motions”); and “Plaintiff’s Motion for
Limited Jurisdictional Discovery” (Docket Entry 34) (the “Discovery
Motion”).

For the reasons that follow, the Court should deny the

Dismissal Motions (without prejudice to resolution at trial of any
viable personal jurisdiction issues) and will deny as moot the
Discovery Motion.
BACKGROUND
Alleging

asbestos-related

personal

injuries,

Merton

Eric

Branson (“Branson” or “Plaintiff”) commenced this action against,
among others, Brenntag North American (“BNA”), Whittaker, Clark &
Daniels, Inc. (“Whittaker”), and Brenntag Specialties, Inc. (“BSI”)

on January 20, 2015.

(See Docket Entry 1 (the “Complaint”).)

Branson sued BNA and BSI “individually and as successor[s] in
interest

to

omitted).)1

Whittaker.”
According

(Id.
to

the

at

3,

¶¶

6-7

Complaint,

(all-cap

during

font

Branson’s

employment at Klopman Mills in North Carolina in 1977 and 1978, he
“worked with, on, and in the vicinity of asbestos-containing
products and materials manufactured and sold by the Defendants
herein and/or for which the Defendants are otherwise liable with
regard to asbestos exposure-caused injury.”

(Id. at 5, ¶¶ 14-16.)

The Complaint further alleges that “Branson was a consumer of
Clubman talc product during the . . . relevant time period and
breathed in the dust commonly generated and occurring as a result
of using the Clubman product.

The product has in the past tested

positive for asbestos fiber material.”

(Id. at 5, ¶ 17.) Finally,

the Complaint asserts that, inter alia:
23.
Mr. Branson sustained repeated regular and
consistent exposure to the asbestos fibers in his
personal and work environment as a result of the
asbestos-containing materials distributed, manufactured
and fabricated by Defendants herein or for which they are
otherwise liable.
. . . .
28.
Defendants (inclusive of any relevant
predecessors-in-interest), during some or all of the
relevant times, were each a manufacturer, processor,

1
Citations herein to Docket Entry pages utilize the
document’s internal pagination if unified internal pagination
exists. In the absence of such pagination, the Docket Entry page
citations utilize the CM/ECF footer’s pagination.
2

designer, seller, importer, converter, compounder,
installer
and/or
retailer
of
asbestos
and
asbestos-related materials, or were otherwise liable for
the asbestos-related injury.
29.
Defendants, acting through their agents,
servants, and/or employees, caused certain asbestos and
asbestos-related materials to be placed in the stream of
interstate commerce with the result that Mr. Branson
sustained regular, consistent and repeated exposure to
the Defendant’s [sic] asbestos and asbestos-related
materials used and installed in his work environment and
at home.
30. Defendants negligently produced, sold, supplied
or otherwise put into the stream of commerce asbestos and
asbestos-containing products as previously identified.
31. Mr. Branson sustained exposure to Defendants’
asbestos and asbestos-related materials, which exposure
directly and proximately caused him to develop peritoneal
mesothelioma caused by breathing dust and fibers from
Defendant’s [sic] asbestos-containing products.
(Id. at 7-8, ¶¶ 23, 28-31.)
Branson served the Complaint and associated summonses on BNA
on February 5, 2015, and on Whittaker on January 30, 2015. (Docket
Entry 22 at 1-2, 4, 7-8, 12.)

Branson served the Complaint and

summons on BSI at three different addresses on January 28, 2015,
January 30, 2015, and February 4, 2015.

(Id. at 1-3, 8-9.)

Branson effected the January 28, 2015 service on BSI and the
January 30, 2015 service on Whittaker through their registered
agents in North Carolina.

(Id. at 1-2, 4, 9, 12.)

2015, Whittaker answered the Complaint.

On March 13,

(See Docket Entry 15.)

BNA and BSI failed to answer or otherwise respond to the Complaint
until July 29, 2015.

(See Docket Entries 20, 21; see generally

3

Docket Entries dated Jan. 20, 2015, through July 29, 2015.)2

BNA

and BSI did not seek leave to file their untimely answers, which
largely mirror Whittaker’s previously filed answer (see Docket
Entries 15, 20, 21), but Branson has not sought to strike these
answers as untimely (see generally Docket Entries dated July 29,
2015, to present).3
As one of a litany of boilerplate defenses in their answers,
BNA and BSI assert, without factual support, that the “Court lacks
both

general

Defendant.”

and

specific

personal

jurisdiction

over

the

(Docket Entry 20 at 2; Docket Entry 21 at 2.)

Nevertheless, on September 4, 2015, BNA and BSI participated in the
discovery conference among the parties mandated by Rule 26(f) of
the Federal Rules of Civil Procedure (the “Rules”).
Entry 27

at

1.)

Then,

on

September

17, 2015,

(See Docket
BNA

and

BSI

participated in the submission of a “Joint Rule 26(f) Report” (the
“Rule 26 Report”) to the Court regarding the parties’ agreed-upon

2 On July 29, 2015, the Court’s Clerk issued a “Notice to
Plaintiff of Failure to Make Service Within 120 Days,” indicating
that “[t]he docket in this action does not reflect that service has
been obtained upon defendants[ BNA and BSI].” (Docket Entry 19 at
1.)
Later that day, BNA and BSI filed their answers (Docket
Entries 20, 21) and Branson filed an “Affidavit of Service”
attesting to service upon all defendants in the action (Docket
Entry 22).
The following day, BNA and BSI filed the corporate
disclosure statements required by Federal Rule of Civil Procedure
7.1(b) upon a party’s “first appearance[ or] pleading.” (Docket
Entries 23, 24.)
3 The same counsel represents BNA, BSI, and Whittaker.
Docket Entry 27 at 5-6.)
4

(See

proposed discovery plan.

(Id. at 1, 4-6.)

On September 26, 2015,

the Court adopted the Rule 26 Report, establishing discovery on the
“exceptional” case-management track, with a discovery deadline of
October 31, 2016.
Sept. 28, 2015.)

(See Docket Entries dated Sept. 26, 2015, and
Next, pursuant to Local Rule 83.9d, BNA and BSI

participated in the parties’ selection of a mediator for this
action, whom the Court appointed on November 12, 2015. (See Docket
Entry 28.)
On January 19, 2016, however, BNA and BSI filed the Dismissal
Motions. (See Docket Entries 29, 31.) In its respective Dismissal
Motion, BNA and BSI each
respectfully moves to dismiss Plaintiff’s Complaint
pursuant to Federal Rule of Civil Procedure 12(c) on the
grounds that the exercise of personal jurisdiction over
[the pertinent defendant] violates the requirements of
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. As set forth in more detail
in the accompanying Brief in Support of Motion to Dismiss
for Lack of Personal Jurisdiction, the pleadings and
affidavit of [the pertinent defendant’s] corporate
representative establish that Plaintiff cannot satisfy
his burden in proving that [the pertinent defendant] is
subject to the jurisdiction of this Court. Accordingly,
this Court should grant [the pertinent defendant’s]
Motion to Dismiss for Lack of Personal Jurisdiction.
(Docket Entry 29 at 1; Docket Entry 31 at 1.)

In support, BNA and

BSI proffer an affidavit from a corporate official attesting to its
business operations.

(See Docket Entries 30-1, 32-1.)

Notably,

although the Complaint alleges that BNA and BSI are successors in
interest to Whittaker (Docket Entry 1 at 3, ¶¶ 6-7), neither
affidavit mentions Whittaker (see Docket Entries 30-1, 32-1).
5

In
evidence

response
from

connections

to

the

Dismissal

publically

between

Motions,

available

BNA,

BSI,

sources

Whittaker,

Branson
(i)

submitted

establishing

and

talc,

and

(ii) establishing that, at a minimum, BNA and BSI’s corporate
affiliates possess North Carolina connections. (See Docket Entries
35-1 through 35-17.)

In addition, Branson asked that the Court

delay ruling on the Dismissal Motions until Branson conducts
jurisdictional discovery regarding, inter alia, the relationship
between BNA, BSI, and Whittaker (Docket Entry 35 at 8) and “the
nature of [BNA] and BSI’s involvement in selling talc into the
stream of commerce that ultimately was found in the consumer
product that [Branson] used” (Docket Entry 42 at 2).

(See also

Docket Entry 34 at 1 (requesting “limited discovery on the personal
jurisdiction issues raised by the motions to dismiss”).)
BNA

oppose

Branson’s

Discovery

Motion,

BSI and

contending

that

“[p]ermitting Plaintiff to engage in jurisdictional discovery would
amount to a waste of time and resources.”

(Docket Entry 40 at 1;

accord Docket Entry 39 at 1.)
DISCUSSION
I. Dismissal Motions
A. Rule 12 Standards
Known as “the ‘raise or waive’ rule,” Plunkett v. Valhalla
Inv. Servs., Inc., 409 F. Supp. 2d 39, 41 (D. Mass. 2006), Rule
12(h) operates “to expedite and simplify proceedings” by ensuring
6

that parties do not “delay[] consideration of th[e] threshold
issue[s]” identified in Rule 12(b)(2)-(5), Yeldell v. Tutt, 913
F.2d 533, 539 (8th Cir. 1990).

Thus, pursuant to Rule 12(h), a

party must assert a lack of personal jurisdiction defense “in [its]
first defensive move, be it a Rule 12 motion or a responsive
pleading,” Manchester Knitted Fashions, Inc. v. Amalgamated Cotton
Garment & Allied Indus. Fund, 967 F.2d 688, 692 (1st Cir. 1992)
(emphasis and internal quotation marks omitted).
P. 12(h)(1)(B).

See Fed. R. Civ.

Any Rule 12(b) motion “must be made before

pleading if a responsive pleading is allowed.”

Fed. R. Civ. P.

12(b); see also 5C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1361 (3d ed. 1998, Apr. 2016 update) (“If
the defendant decides to assert a Rule 12(b) defense by motion,
then he must do so before filing the answer.”).
who

forgoes

a

Rule

12(b)

motion

in

favor

Moreover, a party
of

asserting

a

jurisdictional defect in its (timely) answer must promptly present
that defense for the Court’s consideration.

See, e.g., Yeldell,

913 F.2d at 539 (“Asserting a jurisdictional defect in the answer
did ‘not preserve the defense in perpetuity.’ This defense ‘may be
lost by failure to assert it seasonably, by formal submission in a
cause, or by submission through conduct.’” (citation omitted)
(first quoting Burton v. Northern Dutchess Hosp., 106 F.R.D. 477,
481

(S.D.N.Y.

1985);

then

quoting

Neirbo

Co.

v.

Bethlehem

Shipbuilding Corp., 308 U.S. 165, 168 (1939))); Plunkett, 409 F.

7

Supp. 2d

at

41-42 (explaining that

defenses

after

raising

them

may

“[f]ailure

result

in

to

press

such

abandonment”

and

collecting cases).
Conversely, “a party may move for judgment on the pleadings”
pursuant to Rule 12(c) any time “[a]fter the pleadings are closed,”
as long as it moves “early enough not to delay trial.”
Civ. P. 12(c).

Fed. R.

In evaluating a Rule 12(c) motion, the Court

considers only the pleadings, (i) taking all factual allegations in
the Complaint as true, (ii) taking all factual allegations in the
answers as “true only where and to the extent they have not been
denied or do not conflict with the [C]omplaint,” and (iii) drawing
all

reasonable

inferences

in

favor

of

the

nonmoving

party.

Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 433 (M.D.N.C.
2011) (internal quotation marks omitted). “The test applicable for
judgment on the pleadings is whether or not, when viewed in the
light most favorable to the party against whom the motion is made,
genuine issues of material fact remain or whether the case can be
decided as a matter of law.”

Smith v. McDonald, 562 F. Supp. 829,

842 (M.D.N.C. 1983), aff’d, 737 F.2d 427 (4th Cir. 1984), aff’d,
472 U.S. 479 (1985); see also Massey v. Ojaniit, 759 F.3d 343, 353
(4th Cir. 2014) (“[A] Rule 12(c) motion tests only the sufficiency
of the complaint and does not resolve the merits of the plaintiff’s
claims

or

any

disputes

of

fact.”

omitted)).

8

(internal

quotation

marks

As such, if “matters outside the pleadings are presented to
and not excluded by the [C]ourt, the [Rule 12(c)] motion must be
treated as one for summary judgment under Rule 56.”

Fed. R. Civ.

P. 12(d).

In that circumstance, “[a]ll parties must be given a

reasonable

opportunity

pertinent

to

the

to

motion.”

present
Id.

all

the

“[T]he

material
term

that

is

‘reasonable

opportunity’ requires that all parties be given some indication by
the [C]ourt . . . that it is treating the [relevant] motion as a
motion for summary judgment, with the consequent right in the
opposing party to file counter affidavits or pursue reasonable
discovery.”

Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985)

(ellipsis in original) (internal quotation marks omitted).
Notably, the Court possesses discretion to adjudicate any Rule
12(b) or 12(c) motion either “before trial” or to “order[ its]
deferral until trial.”

Fed. R. Civ. P. 12(i); see, e.g., Sterling

v. Velsicol Chem. Corp., 855 F.2d 1188, 1195 (6th Cir. 1988) (“The
method and timetable for deciding a Rule 12(b) motion under Rule
12([i]) is left to the sole discretion of the trial judge who may
defer that determination until trial.”).4

Finally, if advanced

after a responsive pleading, an ostensible Rule 12(b) motion
effectively constitutes a request for preliminary adjudication

4
Prior to the (non-substantive) 2007 amendments to the
Rules, Rule 12(i) appeared as Rule 12(d). 5C Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1373 (3d ed.,
Apr. 2016 update).
9

under Rule 12(i). See 5C Federal Practice and Procedure § 1361 (“A
strict interpretation of the timing provision’s language leads to
the conclusion that the district judge must deny any Rule 12(b)
motion made after a responsive pleading is interposed as being too
late. However, federal courts have allowed untimely motions if the
defense has been previously included in the answer.

In this

context, the motion becomes tantamount to a preliminary hearing
under Rule 12([i]).” (footnote omitted)).
B.
This

Personal Jurisdiction Standards
Court

may

exercise

jurisdiction

over

defendants

if

(i) North Carolina’s long-arm statute authorizes it and (ii) the
exercise of jurisdiction comports with due process under the
Fourteenth Amendment. Universal Leather, LLC v. Koro AR, S.A., 773
F.3d 553, 558 (4th Cir. 2014), cert. denied, ___ U.S. ___, 135 S.
Ct. 2860 (2015).
exist:

Two methods for achieving personal jurisdiction

(i) “specific jurisdiction,” in which the defendant’s

qualifying contacts with North Carolina constitute the basis for
the litigation, and (ii) “general jurisdiction,” which occurs when
a

defendant’s

“affiliations

with

[North

Carolina]

are

so

‘continuous and systematic’ as to render [it] essentially at home
in [North Carolina].”

Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 919 (2011).

The Court analyzes three factors

in assessing whether the exercise of specific jurisdiction comports
with due process:

“(1) the extent to which the defendant has

10

purposefully

availed

itself

of

the

privilege

of

conducting

activities in the state; (2) whether the plaintiff[’s] claims arise
out of those activities directed at the state; and (3) whether the
exercise

of

reasonable.”

personal

jurisdiction

would

be

constitutionally

Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs.,

Inc., 334 F.3d 390, 397 (4th Cir. 2003) (internal quotation marks
omitted). In analyzing specific jurisdiction, the Court must focus
on the nature and quality of the defendant’s contacts with North
Carolina.

Id.

In so doing, the Court “should not ‘merely . . .

count the contacts and quantitatively compare this case to other
preceding cases.’

Even a single contact may be sufficient to

create jurisdiction when the cause of action arises out of that
single contact, provided that the principle of ‘fair play and
substantial justice’ is not thereby offended.”

Id. (ellipsis in

original) (citation omitted).
If the Court considers a pretrial jurisdictional challenge
without conducting an evidentiary hearing, the plaintiff need only
make a prima facie showing of personal jurisdiction.

Id. at 396.

In such circumstances, the Court “must construe all relevant
pleading allegations in the light most favorable to the plaintiff,
assume credibility, and draw the most favorable inferences for the
existence of jurisdiction.”

Universal Leather, 773 F.3d at 558

(internal quotation marks omitted).

11

The Court must also construe

all “conflicting facts in the parties’ affidavits and declarations
in the light most favorable to [the plaintiff].”
C.

Id. at 560.

Proper Classification

BNA and BSI purport to present the Dismissal Motions pursuant
to Rule 12(c).

(See Docket Entry 29 at 1 (“mov[ing] to dismiss

Plaintiff’s Complaint pursuant to [Rule] 12(c) on the grounds that
the

exercise

of

personal

jurisdiction

over

[the

pertinent

defendant] violates the requirements of the Due Process Clause”);
Docket Entry 31 at 1 (same).)
the

Dismissal

Motions

as

BNA and BSI do not, however, treat

made

pursuant

to

Rule

12(c).

For

instance, although Rule 12(c) asks whether the pleadings establish
an entitlement to judgment as a matter of law, the memoranda in
support of the Dismissal Motions reference the Complaint a total of
four times, solely to identify the nature of Branson’s allegations
against BNA and BSI.
that

BNA

(See Docket Entry 30 at 2 (“Plaintiff claims

manufactured

and

sold

asbestos-containing

including talc, which were used by Plaintiff.

products,

See Pl.’s Compl at

¶ 6.”), 3 (“Plaintiff’s claims against BNA are based on the
allegations that BNA manufactured and sold asbestos-containing
products, including talc, which were used by Plaintiff.

See

Complaint at ¶ 6.”), 7 (“Plaintiff claims that BNA manufactured and
sold asbestos-containing products, including talc, which were used
by Plaintiff in North Carolina.

See Pl.’s Compl at ¶ 6.”); Docket

Entry 32 at 3 (“Plaintiff’s claims against BSI are based on the

12

allegations that BSI manufactured and sold asbestos-containing
products, including talc, which were used by Plaintiff.
Complaint at ¶ 7.”).)5

See

These memoranda do not address Branson’s

jurisdictional allegations (see generally Docket Entries 30, 32),
and instead maintain that “Plaintiff will not be able to meet his
burden of establishing that the Court has [personal] jurisdiction
over [the pertinent defendant]” (Docket Entry 30 at 2; accord
Docket Entry 32 at 1).
In addition, the decisions upon which BSI and BNA rely in
support of the Dismissal Motions involve motions to dismiss under
Rule 12(b)(2) or the equivalent state rule, rather than Rule 12(c)
motions for judgment on the pleadings. (See, e.g., Docket Entry 30
at 2-3 (relying on Yates v. Motivation Indus. Equip. Ltd., 38 F.
App’x 174 (4th Cir. 2002)); Docket Entry 32 at 2-3 (same); see also
Yates, 38 F. App’x at 175 (“[The defendant] . . . moved to dismiss
the

case

pursuant

jurisdiction.

to

[Rule]

12(b)(2),

for

lack

of

personal

After allowing [the plaintiff] additional time to

conduct jurisdictional discovery, the [court] . . . found that the
exercise of personal jurisdiction in this case was appropriate and
denied [the defendant’s] motion to dismiss.”).)

Branson likewise

approaches the Dismissal Motions as made pursuant to Rule 12(b)(2)
rather

than

Rule

12(c).

(See,

e.g.,

Docket

Entry

35

5
Moreover, the memoranda fail to even mention
defendants’ answers. (See generally Docket Entries 30, 32.)
13

at

1

the

(asserting that “the motions to dismiss . . . . should be denied as
the Plaintiff shows a prima facie basis for personal jurisdiction,”
and asking, “[i]n the alternative, . . . that the Court allow
discovery on the jurisdictional issues”).)

Accordingly, the Court

should evaluate the Dismissal Motions as untimely Rule 12(b)
motions and, for the reasons discussed below, deny these motions.
D.

Rule 12(i) Analysis

As

untimely

motions

to

dismiss

for

lack

of

personal

jurisdiction, the Dismissal Motions constitute Rule 12(i) requests
for

preliminary

adjudication.

Procedure § 1361.

See

5C

Federal

Practice

and

The circumstances of this case render such

preliminary adjudication improper.
Here, BNA and BSI neither timely moved to dismiss nor timely
answered the Complaint.

Instead, approximately six months after

being served, BNA and BSI filed answers in which they claimed, as
one of a legion of boilerplate defenses and without any factual
support, that the Court lacks jurisdiction over them.
Entry 20 at 2; Docket Entry 21 at 2.)

(Docket

BNA and BSI then proceeded

to participate in the Rule 26(f) conference, to agree upon a
discovery plan for this case, to submit such discovery proposal to
the Court for its approval, and, following the commencement of
discovery, to participate in the selection of a mediator pursuant
to this Court’s alternative dispute resolution procedures.
Docket Entries 27, 28.)

(See

At no point during this process did BNA or

14

BSI challenge the Court’s jurisdiction.

(See, e.g., Docket Entry

27.)
Instead, nearly six months after filing their untimely answers
and nearly a year after being served, BNA and BSI brought the
Dismissal Motions.

(See Docket Entries 20, 21, 29, 31; Docket

Entry 22 at 1-3, 7-9.)

By the time briefing on the Dismissal

Motions and related Discovery Motion finished, six months of the
discovery period had elapsed.
2016.)

(See Docket Entry dated Mar. 28,

Yet, rather than producing evidence gleaned from other

parties during discovery, BNA and BSI only proffered affidavits
from their corporate officials regarding their respective business
operations.

(See Docket Entries 30-1, 32-1; see also Docket

Entries 36, 37.) Moreover, although the Complaint asserts that BNA
and BSI constitute Whittaker’s successors in interest (Docket Entry
1 at 3, ¶¶ 6-7), neither Dismissal Motion affidavit addresses
Whittaker (see Docket Entries 30-1, 32-1).6
In

response

to

the

Dismissal

Motions,

Branson

produced

evidence regarding connections between, inter alia, Whittaker, BSI,

6
Whittaker’s answer contains the same bald assertion
regarding lack of personal jurisdiction as BNA’s and BSI’s answers.
(See Docket Entry 15 at 2; Docket Entry 20 at 2; Docket Entry 21 at
2.) By participating in this litigation without reservation for
more than a year after filing its answer, however, Whittaker
relinquished any personal jurisdiction defense it possessed. See,
e.g., Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60-62 (2d Cir.
1999) (concluding that, although it included the defense in its
answer, the defendant forfeited its personal jurisdiction defense
through its participation in litigation before pressing that
defense); Plunkett, 409 F. Supp. 2d at 42 (same).
15

BNA, and talc.

(See, e.g., Docket Entry 35-1 at 2-3 (article

reporting a $7 million verdict “against Whittaker Clark & Daniels,
a

division

of

Brenntag

North

America”

for

“asbestos-tainted

consumer talcum powder”); Docket Entries 35-10 (indicating that BSI
possesses
(same).)7

the

(talc-associated)

Branson’s

evidence

Whittaker

also

trademark),

undermines aspects

35-11
of

the

jurisdictional image painted in the Dismissal Motion affidavits.
For example, BSI’s supporting affidavit — which concedes that
“BSI does sell some chemical products in North Carolina” (Docket
Entry 32-1 at 2) — suggests that BSI came into existence in 2003;
in particular, this affidavit asserts that “Mineral & Pigment
Services, Inc. (‘MPSI’) was incorporated in . . . 2003” and
“changed its name to Brenntag Specialties, Inc.” in 2007.

(Id. at

1; see also id. at 2 (discussing the “inception in 2003[ of]
BSI”).)8

However,

Branson

produced

evidence

from

multiple

independent sources suggesting that at least some iteration of BSI
existed prior to 2003.

(See Docket Entry 35-7 at 2 (Bloomberg

company summary indicating that “Mineral and Pigment Solutions,
Inc. [(the “Original MPSI”)] was merged into Brenntag Specialities,
Inc.” in 2007 and was “[f]ounded in 1890” (emphasis in original));

7 In addition to submitting publically available evidence,
Branson sought leave to engage in written and oral discovery of BSI
and BNA “on personal jurisdiction issues raised by the [Dismissal
M]otions” (Docket Entry 35-18 at 1). (See Docket Entry 34.)
8
BSI relies heavily on this asserted fact in disputing
jurisdiction. (See, e.g., Docket Entry 32 at 2-3, 7-10.)
16

Docket Entry 35-6 at 10-13 (talc material safety data sheet issued
by the Original MPSI under the Brenntag logo in 2002); see also
Docket Entry 35-3 at 2 (stating, on ChemBuyersGuide.com website,
that “[o]n September 1, 2007, Brenntag North America embarked on a
new strategy that transformed their two speciality companies,
Mineral and Pigment Solutions and ChemTech Specialities, into a new
organization called Brenntag Specialties, Inc. (BSI)”).)
This record warrants further factual development prior to the
Court’s adjudication of BNA’s and BSI’s jurisdictional assertions.
In addition, certain jurisdictional issues, such as BNA’s and BSI’s
relationship with Whittaker, appear intertwined with the merits of
Branson’s claims, which further militates towards deferral of these
jurisdictional contentions.

See Kregler v. City of New York, 608

F. Supp. 2d 465, 475 (S.D.N.Y. 2009) (explaining that Rule 12(i)
preliminary hearings “cannot be employed to decide the merits of a
dispute, or issues so closely interwoven with the merits so as to
render it unlikely or impractical that the hearing would achieve a
productive outcome”); see also United States v. Central States
Theatre Corp., 159 F. Supp. 552, 554-55 (D. Neb. 1957) (deferring
consideration of jurisdictional defenses until trial, in part
because “the issues tendered are basically factual” and their
“pretrial determination . . . would be expensive both in money and
in time, and administratively indiscreet and unwise[; t]he whole
evidence available upon the disputed points[] . . . should be

17

before the court” in adjudicating those defenses); Powell v.
Knight,

74

F.

Supp.

191,

198

(E.D.

Va.

1947)

(deferring

consideration of motion to dismiss because it “raises an issue
which can best be disposed of at the trial”).
Moreover, the delayed nature of BNA’s and BSI’s assertion of
these defenses favors deferral. As the United States Supreme Court
explained in reference to a similarly waivable defense:
We are of opinion that the privilege is of such a
nature that it must be asserted at latest before the
expiration of the period allotted for entering a general
appearance and challenging the merits.
In ordinary
course, when that period expires the defendant either
will have appeared generally for the purpose of
contesting the merits or by suffering a default will have
assented that his adversary’s allegations be taken as
confessed for the purposes of judgment. In either event
the suit will have reached the stage where attention must
be given to the merits. . . .
To hold that such a
privilege may be retained until after the suit has
reached the stage for dealing with the merits and then be
asserted would be in our opinion subversive of orderly
procedure and make for harmful delay and confusion.
Commercial Cas. Ins. Co. v. Consolidated Stone Co., 278 U.S. 177,
179-80 (1929).9
This case “reached the stage for dealing with the merits,” id.
at 180, many months ago.
period remains.

Indeed, less than half the discovery

(See Docket Entries dated Sept. 26, 2015, and

Sept. 28, 2015 (establishing discovery deadline of October 31,

9 “Because challenges to jurisdiction over the person, venue,
insufficiency of process and insufficiency of service of process
are all waived under [Rule] 12(h)(1), the jurisprudence discussing
waiver to any of the above applies by analogy to waiver of” the
other defenses. Manchester Knitted Fashions, 967 F.2d at 693 n.7.
18

2016).)

Moreover, BNA and BSI bypassed multiple opportunities for

preliminary resolution of their jurisdictional assertions.
instance, they could have, inter alia:

For

(i) filed timely Rule

12(b)(2) motions to dismiss; (ii) requested a Rule 12(i) hearing
promptly after filing their (untimely) answers, before submitting
the Rule 26 Report; (iii) raised the need for resolution of
jurisdictional issues in the Rule 26 Report; or (iv) brought Rule
12(i) motions promptly after the Court’s adoption of the Rule 26
Report, rather than months into the discovery period.
In sum, under the circumstances of this case, the Court should
defer adjudication of BSI’s and BNA’s jurisdictional contentions
pursuant to Rule 12(i).
E.

Rule 12(c) Analysis

Alternatively, if resolved “pursuant to Federal Rule of Civil
Procedure 12(c)” (Docket Entry 29 at 1; Docket Entry 31 at 1),
without a Rule 12(i) deferral, the Dismissal Motions should be
denied.
materials

As a preliminary matter, notwithstanding presentation of
outside

the

pleadings,

conversion

of

the

Dismissal

Motions into motions for summary judgment pursuant to Rule 12(d)
remains

improper.

Branson

requests

discovery

on

pertinent

jurisdictional matters (see Docket Entry 34), including whether BSI
sells talc in North Carolina, as well as information regarding
BNA’s and BSI’s “relationship with Whittaker[ and] . . . the
[pertinent product’s] manufacturer” (Docket Entry 35 at 8).

19

(See

also Docket Entry 42 at 2 (requesting discovery on “the nature of
[BNA] and BSI’s involvement in selling talc into the stream of
commerce that ultimately was found in the consumer product that
[Branson] used”).) Branson “must be given a reasonable opportunity
to

present

all

jurisdictional
information

the

material

assessment,

regarding

any

that

Fed.

R.

is

Civ.

connections

pertinent”
P.

12(d),

between

BNA,

to

the

including
BSI,

and

Whittaker, the relevant (allegedly) injury-producing product, and
North Carolina, see, e.g., Christian Sci. Bd. of Dirs. of First
Church of Christ, Scientist v. Nolan, 259 F.3d 209 (4th Cir. 2001)
(analyzing whether defendants possessed sufficient contacts for
personal jurisdiction in North Carolina); Mylan Labs., Inc. v.
Akzo, N.V., 2 F.3d 56, 58-63 (4th Cir. 1993) (analyzing whether
corporate relationship justified exercise of jurisdiction where
party

lacked

direct

contacts

with

forum

state).

As

such,

particularly in the circumstances of this case — where (i) Branson
presented documents from public sources that tend to establish such
connections between BNA, BSI, Whittaker, and talc, and (ii) the
affidavits in support of the Dismissal Motions fail to foreclose
the existence of such connections — conversion of the Dismissal
Motions without “afford[ing Branson] an opportunity for reasonable
discovery” remains “‘wholly inappropriate,’” Gay, 761 F.2d at 17778.

20

Accordingly, the Court could only consider the pleadings in
evaluating the Dismissal Motions under Rule 12(c).
801 F. Supp. 2d at 433.10

See Alexander,

The Complaint alleges that the “Court has

personal jurisdiction over the Defendants because the Defendants
are duly licensed to do business in the State of North Carolina
and/or at all material times are or have been engaged in business
in the State of North Carolina.”

(Docket Entry 1 at 1-2.)

It

further asserts that BNA and BSI (i) constitute “successor[s] in
interest

to

[Whittaker]”

and

(ii)

“manufactured

and

sold

asbestos-containing products used including talc by Mr. Branson.”
(Id. at 3, ¶¶ 6-7.)

Additionally, the Complaint states that BSI

and Whittaker possess registered agents in North Carolina. (Id. at
3, ¶ 7, at 4-5, ¶ 12.)

Finally, it declares that BNA and BSI,

“acting

agents,

through

introduced

their

asbestos-containing

servants,
materials

and/or
into

commerce that harmed Branson in North Carolina.

the

employees,”
stream

of

(Id. at 8, ¶ 29;

see also id. at 2, ¶¶ 2-3, at 5, ¶ 14.)
Accepting these allegations as true and drawing all reasonable
inferences in Branson’s favor, the Court cannot “decide[] as a
matter of law,” Alexander, 801 F. Supp. 2d at 433 (internal
quotation marks omitted), that it lacks personal jurisdiction over
BNA and BSI, see, e.g., Universal Leather, 773 F.3d at 558-63

10 In this Rule 12(c) analysis, the Court could not consider
the allegations in BNA’s and BSI’s answers because they conflict
with the Complaint. See Alexander, 801 F. Supp. 2d at 433.
21

(conducting

jurisdictional

analysis

and

concluding

that

the

plaintiff’s “allegations and supporting affidavits[] . . . satisfy
its prima facie burden of showing that [the defendant] purposefully
availed itself of the privilege of conducting business in North
Carolina”); Christian Sci., 259 F.3d at 215-18 (conducting tortrelated specific jurisdiction analysis and affirming existence of
jurisdiction). Thus, under a Rule 12(c) analysis, the Court should
deny the Dismissal Motions.
II.
As

Discovery Motion
a

final

matter,

Branson

seeks

leave

to

engage

in

jurisdictional discovery prior to the Court’s adjudication of the
Dismissal Motions.

(See Docket Entry 34.)

In September 2015, the

Court adopted the parties’ Rule 26 Report, thereby authorizing
discovery “on all relevant issues in the case, including but not
limited to . . . all claims and defenses” (Docket Entry 27 at 1).
(See

Docket

Entry

dated

Sept.

26,

2015.)

Per

the

parties’

proposal, aside from certain deadlines regarding expert discovery,
the Court imposed no restrictions on the timing or sequence of
discovery, save requiring its completion by October 31, 2016. (See
Docket Entry 27 at 2-3.)

As such, Branson does not need leave to

engage in the requested discovery.
the Discovery Motion as moot.

22

The Court will therefore deny

CONCLUSION
Although purportedly moving pursuant to Rule 12(c), BNA and
BSI belatedly pursue preliminary adjudication of their personal
jurisdiction defenses through the Dismissal Motions.

Given the

status of this litigation and the necessity of further factual
development regarding those defenses, the Court should exercise its
discretion to defer adjudication of those defenses until trial.
Coordinately, in light of the Court’s adoption of the Rule 26
Report, Branson does not require leave to engage in jurisdictional
discovery.
IT IS THEREFORE RECOMMENDED that “Defendant Brenntag North
America,

Inc.’s

Jurisdiction”
Specialties,

Motion

(Docket
Inc.’s

to

Dismiss

Entry

29)

Motion

to

for
and

Dismiss

Lack

of

Personal

“Defendant

Brenntag

for

Lack

of

Personal

Jurisdiction” (Docket Entry 31) be denied without prejudice to
resolution of any viable personal jurisdiction defense(s) at trial.
IT

IS

ORDERED

that

“Plaintiff’s

Motion

for

Limited

Jurisdictional Discovery” (Docket Entry 34) is DENIED AS MOOT.
This 7th day of June, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

23