Young et al v. AGCO Corporation et al

Filing 152

ORDER that Defendant Higbee Inc.s Objection [Doc. 117] is OVERRULED; denying #100 Defendant Higbee Inc.s Motion to Dismiss for Lack of Jurisdiction; accepting #115 Memorandum and Recommendation; granting #120 Defendants Motion to Add Affidavit in Support of Memorandum and Recommendation. Signed by District Judge Martin Reidinger on 3/26/2014. (khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00054-MR-DLH

CAROLYN M. YOUNG and SARA
WORKMAN, both Individually and
as Co-Executrices of the Estate of
FRANK VERNON MILLER,
Deceased,

)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
AGCO CORPORATION, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on Defendant Higbee Inc.’s Motion
to Dismiss [Doc. 100]; the Magistrate Judge’s Memorandum and
Recommendation regarding the disposition of such Motion [Doc. 115]; the
Defendant’s Objection to the Memorandum and Recommendation [Doc.
117]; the Plaintiffs’ Response in opposition to the Defendant’s Objection to
the Memorandum and Recommendation [Doc. 118]; and the Defendant’s
Motion to Add Affidavit in Support of Memorandum and Recommendation
[Doc. 120].

I.

PROCEDURAL BACKGROUND
The Plaintiffs Ruby Carolyn Miller and Sara Workman, both

individually and as Co-Executrices of the Estate of Frank Vernon Miller,
Deceased (collectively “Plaintiffs”) brought this action on February 28, 2013
against the Defendants AGCO Corporation, et al., asserting claims of
negligence, breach of implied warranty, and conspiracy, arising out of the
death of Frank Miller (“Mr. Miller” or “the decedent”) from mesothelioma
allegedly caused by exposure to asbestos. [Doc. 1]. The Plaintiffs filed an
Amended Complaint on March 13, 2013. [Doc. 3].1
On May 24, 2013, the Defendant Higbee, Inc. (“Higbee”) moved to
dismiss the claims asserted against it for lack of personal jurisdiction over it
as a non-resident, pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure. [Doc. 100]. The Plaintiffs opposed such motion on June 10,
2013. [Doc. 103].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of
Designation of this Court, the Honorable Dennis L. Howell, United States
Magistrate Judge, was designated to consider Higbee’s motion and to

1

The Complaint was again amended on January 21, 2014 to substitute Carolyn M.
Young as the proper co-executrix of Mr. Miller’s estate and to remove Ruby Carolyn
Miller as a plaintiff in the action. The factual allegations relevant to the Plaintiffs’ claims
against Higbee remain unchanged by this amendment.
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submit a recommendation regarding its disposition.

On September 27,

2013, the Magistrate Judge entered a Memorandum and Recommendation
in which he recommended that Higbee’s motion be denied. [Doc. 115].
Higbee timely filed an objection [Doc. 117], to which the Plaintiffs
responded [Doc. 118].
While the Memorandum and Recommendation and Objections were
pending, Higbee filed a motion for leave to file an additional affidavit in
support of its motion to dismiss. [Doc. 120]. The Plaintiffs did not file any
opposition to that motion.
This matter is now ripe for disposition.
II.

STANDARD OF REVIEW
The Federal Magistrate Act requires a district court to “make a de

novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1). In order “to preserve for appeal an issue in a magistrate judge’s
report, a party must object to the finding or recommendation on that issue
with sufficient specificity so as reasonably to alert the district court of the
true ground for the objection.” United States v. Midgette, 478 F.3d 616,
622 (4th Cir. 2007). The Court is not required to review, under a de novo or
any other standard, the factual or legal conclusions of the magistrate judge
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to which no objections have been raised. Thomas v. Arn, 474 U.S. 140,
150 (1985). Additionally, the Court need not conduct a de novo review
where a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
III.

DISCUSSION
In its Objections, Higbee argues that there is insufficient evidence

that it purposefully availed itself of the benefits of conducting business in
North Carolina, or that the decedent’s injuries arose out of Higbee’s
activities selling gaskets within this state, such that specific jurisdiction may
be asserted over it in this action.

Specifically, Higbee contends that

Magistrate Judge erroneously concluded that Higbee had engaged in
purposeful availment “on the sole basis that Higbee acknowledges
manufacturing custom build products for customers in North Carolina.”
[Doc. 117 at 2]. While Higbee’s acknowledgment in this regard was one of
the factors considered, the Magistrate Judge also noted the Plaintiffs’
allegation [Doc. 3 at ¶ 14] that Higbee “has engaged in long-term business
activities in North Carolina by selling its products in the state.” [Doc. 115 at
5].

The Plaintiffs’ allegations, particularly when taken together with

Higbee’s admission of dealings with North Carolina customers, are
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sufficient to establish a prima facie case of specific jurisdiction over the
Defendant.2
Higbee further contends that the jurisdictional allegations in the
Plaintiffs’ Amended Complaint are insufficient because they merely assert
the presence of Higbee’s gaskets at the plant. Higbee contends that the
Plaintiffs critically do not allege that these gaskets were sold to American
Thread Plant by the Defendant, or that they were directed by Defendant to
the forum state of North Carolina, or that they were installed in the
equipment in North Carolina.

[Doc. 117 at 3].

Contrary to Higbee’s

argument, however, the Plaintiffs’ allegations clearly go beyond asserting
the mere presence of Higbee’s product in the state. In paragraph 41 of the
Amended Complaint, the Plaintiffs allege that Higbee “manufactured,
distributed, sold, supplied, and/or otherwise placed into the stream of

2

The Defendant’s supplemental affidavit [Doc. 120-1], which the Defendant seeks
to add to the record of this action, does not change this result. While this supplemental
affidavit clarifies that Higbee has no record of selling products to American Thread and
that it has never sold any asbestos-containing products in North Carolina, these new
factual assertions do not contradict the Plaintiffs’ allegation that Higbee manufactured,
distributed, sold, supplied, and/or otherwise placed asbestos-containing products into
the stream of commerce so that such products were caused to be used at the
decedent’s job site in North Carolina. [Doc. 3 at ¶ 41].
While the Court has considered this supplemental affidavit, Defendant’s counsel
is admonished that the practice of supplying additional affidavits after a rendition of a
Memorandum and Recommendation by the Magistrate Judge in order to “get another
bite at the apple” is a practice that is strongly disfavored by this Court.
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commerce asbestos and/or asbestos-containing products, materials, or
equipment either directly or indirectly to Plaintiffs’ Decedent Frank Vernon
Miller or to his employers in North Carolina so that these materials were
caused to be used at the Plaintiffs’ Decedent Frank Vernon Miller’s job
sites in North Carolina.” [Doc. 3 at ¶ 41]. In paragraph 47, they further
allege that the decedent “was exposed to Defendants’ asbestos-containing
products sold and distributed in North Carolina.”

[Id. at ¶ 47].

The

Magistrate Judge properly recognized that these factual allegations
sufficiently “establish that Plaintiffs’ claims arise out of Defendant Higbee’s
contacts with North Carolina….” [Doc. 115 at 5-6]. Accordingly, Higbee’s
objection in this regard is overruled.
Notably, Higbee does not object to the Magistrate Judge’s conclusion
that Plaintiffs must only make a prima facie showing of personal jurisdiction
at this stage of the proceedings.

Construing the allegations in the

Amended Complaint in the light most favorable to the Plaintiffs, and
resolving as the Court must all factual disputes in the Plaintiffs’ favor, see
New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290,
294 (4th Cir. 2005); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989), the
Court concludes that the Plaintiffs have stated a prima facie of personal

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jurisdiction against Higbee.

Accordingly, Higbee’s objections to the

Memorandum and Recommendation are overruled.
IV.

CONCLUSION
Having conducted a de novo review of those portions of the

Memorandum and Recommendation to which objections were filed, the
Court concludes that the Magistrate Judge’s proposed conclusions of law
are correct and consistent with current case law. Accordingly, the Court
hereby accepts the Magistrate Judge’s recommendation that the
Defendant’s Motion to Dismiss be denied.

ORDER
IT IS, THEREFORE, ORDERED that the Defendant’s Motion to Add
Affidavit in Support of Memorandum and Recommendation [Doc. 120] is
GRANTED.
IT IS FURTHER ORDERED that Defendant Higbee Inc.’s Objection
[Doc. 117] is OVERRULED; the Magistrate Judge’s Memorandum and
Recommendation [Doc. 115] is ACCEPTED; and Defendant Higbee Inc.’s
Motion to Dismiss [Doc. 100] is DENIED.

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IT IS SO ORDERED.
Signed: March 26, 2014

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