Southern v. Asbestos Processing LLC et al

Filing 275

ORDER granting without prejudice 194 Motion to Dismiss by Tullos & Tullos, Eugene C Tullos; granting without prejudice 195 Motion to Dismiss by Barrett Law Group PA, John W Barrett; granting without prejudice 200 Moti on to Dismiss by Paul T Benton; denying 213 Motion to Dismiss by Cumbest Cumbest Hunter & McCormick, David O McCormick; granting without prejudice 224 Motion to Dismiss by Rance N Ulmer; denying 226 Motion to Dismiss by Pittman Germany Roberts & Welsh LLP, Crymes G Pittman. Signed by Honorable Joseph F. Anderson, Jr. on 03/21/2014.(bshr, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Odell Parker; Ruth Parker; Larry Southern;
Roy Southern; Yvonne Harris; and Barbara
Patterson, individually and on behalf of
others similarly situated in the State of South
Carolina,

C/A No. 0:11-cv-01800-JFA

Plaintiff,
vs.
ORDER
Asbestos Processing, LLC; Richard H.
Bishoff, PC; Richard H. Bishoff; John M.
Deakle; John W. Barrett; Barrett Law Group,
P.A.; A. Joel Bentley; A. Joel Bentley Law
Office; Paul T. Benton; Charles G. Blackwell,
Jr.; William R. Couch; Couch Law Firm;
Patrick C. Malouf; Porter & Malouf, P.A.;
Hammack, Barry, Thaggard & May, LLP;
David O. McCormick; Cumbest Cumbest
Hunter & McCormick; Crymes G. Pittman;
Pittman, Germany, Roberts & Welsh, LLP;
Anthony Sakalarios; Morris Sakalarios &
Blackwell, PLLC; John Michael Simms;
Eugene C. Tullos; Tullos & Tullos; Rance N.
Ulmer; Lawyer John Joe; Lawyer Jane Doe,
Defendants.

This matter comes before the court on motions to dismiss filed by several defendants in
this action. ECF Nos. 194, 195, 200, 213, 224, 226. Specifically, John W. Barrett; Barrett Law
Group, P.A.; Paul T. Benton; David O. McCormick; Cumbest Cumbest Hunter & McCormick;
Crymes G. Pittman; Pittman, Germany, Roberts & Welsh, LLP; Eugene C. Tullos; Tullos &
Tullos; and Rance N. Ulmer (collectively, “moving Defendants”) seek to dismiss the plaintiffs’
complaint for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of
Civil Procedure, and for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure.1 Odell Parker, Ruth Parker, Larry Southern, Roy Southern, Yvonne Harris, and
Barbara Patterson (“Plaintiffs) have filed an omnibus brief in opposition. ECF Nos. 258.
I.

Background
This case arises out of allegations of legal malpractice against several lawyers and their

law firms. According to the complaint, the lawyers handled claims against bankrupt asbestos
manufacturers on behalf of Plaintiffs and other South Carolina residents similarly situated who
had been injured by exposure to asbestos in their workplace. Specifically, Plaintiffs allege that
the lawyers committed malpractice when they pursued the asbestos claims without providing
notice or obtaining waivers from Plaintiffs’ employers, thereby barring any potential entitlement
to workers’ compensation benefits. Commenced in 2001 in this court as an action against four
defendants, an amendment of the complaint in 2013 added others for a total of 27 defendants. Of
those, the 10 moving Defendants are all lawyers and law firms in Mississippi, and they have filed
motions to dismiss for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal
Rules of Civil Procedure, and for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. On July 10, 2013, the court suspended all other deadlines pending the
outcome of the motions to dismiss, but permitted 10 weeks of jurisdictional discovery before
ruling on the individual motions. After supplemental briefing from the parties at the close of the
jurisdictional discovery period, the court heard oral arguments on March 17, 2014.
II.

Legal Standard
When the moving Defendants challenge this court’s personal jurisdiction under Rule

12(b)(2), Plaintiffs have “the burden of proving” that jurisdiction exists “by a preponderance of
the evidence.” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th
1

Benton has filed a motion to dismiss under Rule 12(b)(2) alone, while the other moving Defendants
seek dismissal under both Rule 12(b)(2) and Rule 12(b)(6). One other defendant, Hammack Barry
Thaggard & May LLP, filed a motion to dismiss for lack of personal jurisdiction, but the parties have
stipulated to its dismissal without prejudice. ECF Nos. 255, 266.

Cir. 2005) (noting that a plaintiff need only make a prima facie showing of jurisdiction when the
court does not conduct an evidentiary hearing). In deciding whether Plaintiffs have met this
burden, the court construes all disputed facts and draws all reasonable inferences from the proof
in favor of jurisdiction. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390,
396 (4th Cir. 2003). However, Plaintiffs must base their claim for personal jurisdiction on
“specific facts set forth in the record.” Magic Toyota, Inc. v. Southeast Toyota Distribs., Inc.,
784 F. Supp. 306, 310 (D.S.C. 1992).
When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court
must accept as true the facts alleged in the complaint and view them in a light most favorable to
Plaintiffs. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999). Still, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Although “a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations,” a pleading that only offers
“labels and conclusions,” or “a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. Thus, Plaintiffs must assert claims that cross “the line from
conceivable to plausible.” Id. at 1950–51 (internal quotation marks omitted).
III.

Analysis and Application
Because this court finds that the factual allegations in Plaintiffs’ third amended complaint

state plausible claims for relief against all moving Defendants, the court rejects the Rule 12(b)(6)
challenges to the complaint and evaluates the motions to dismiss for lack of personal jurisdiction.
For this court to assert personal jurisdiction over non-resident defendants, the exercise of
jurisdiction (1) must be authorized under the state’s long-arm statute and (2) must comport with

the due process requirements of the Fourteenth Amendment. Christian Sci. Bd. of Dirs. of the
First Church of Christ v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001).
South Carolina courts have held that the state’s long-arm statute is coextensive with the
limits of personal jurisdiction set by the due process clause of the Constitution. See, e.g., S.
Plastics Co. v. S. Commerce Bank, 423 S.E.2d 128, 130 (S.C. 1992). As a result, this court’s
statutory inquiry merges with its constitutional inquiry, and the court turns to the constitutional
question of whether the moving Defendants had “minimum contacts with [South Carolina] such
that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’” ESAB Group v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997) (quoting Int’l Shoe
Co. v. Wash., 326 U.S. 310, 316 (1945) (internal citation and quotation marks omitted)).
Courts recognize two types of personal jurisdiction: general and specific. See, e.g., CFA
Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n.15 (4th Cir. 2009). Under
general jurisdiction, the moving Defendants may be sued in this court “for any reason, regardless
of where the relevant conduct occurred,” but their activities in South Carolina must be
“continuous and systematic.” See id. Under specific jurisdiction, the moving Defendants may be
sued in this court if the litigation results from alleged injuries that arose out of or related to their
contacts with South Carolina and those contacts were sufficient.

See, e.g, Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Because Plaintiffs assert that
their lawsuit arose out of the moving Defendants’ contacts with South Carolina, the court
assesses their contacts with the state under the less demanding standard of specific jurisdiction.
In determining whether the exercise of specific personal jurisdiction is appropriate, the
court weighs “(1) the extent to which the defendant purposefully availed itself of the privilege of
conducting activities in the State; (2) whether the plaintiffs’ claims arise out of those activities
directed at the State; and (3) whether the exercise of personal jurisdiction would be
constitutionally reasonable.” ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712

(4th Cir. 2002) (internal citations and quotation marks omitted).
Plaintiffs argue that the proof establishes personal jurisdiction because the moving
Defendants: (1) served as co-counsel with other non-moving defendants for South Carolina
plaintiffs on asbestos claims arising in South Carolina; (3) shared in legal fees obtained from
Plaintiffs’ and other South Carolinians’ asbestos claims; and (4) established minimum contacts
with South Carolina through non-moving defendants as their agents and co-counsel. Plaintiffs
further submit that two of the moving Defendants, David O. McCormick (“McCormick”) and
Crymes G. Pittman (“Pittman”), had multiple direct contacts with the state.
Having considered the pleadings, the affidavits, and the oral arguments, this court finds
that it may assert specific personal jurisdiction over McCormick and the law firm Cumbest
Cumbest Hunter & McCormick; and over Pittman and the law firm Pittman, Germany, Roberts
& Welsh, LLP. Measured against the standards set out above, the evidence on the record offers
sufficient proof that McCormick, Pittman and their respective firms established minimum
contacts with South Carolina for specific personal jurisdiction. McCormick reached into the
state through travel and correspondence related to the litigation at issue. Pittman was counsel of
record on at least one of the asbestos cases including South Carolina plaintiffs and reached into
the state with correspondence related to the litigation. Thus, they both directed activities at South
Carolina “in more than a random, fortuitous, or attenuated way” and should have been “able to
anticipate being sued” in this forum. See Mitrano v. Hawes, 377 F.3d 402, 407 (4th Cir. 2004).
Finding that McCormick, Pittman and their respective firms purposefully availed
themselves of the privilege of conducting activities in South Carolina for purposes of minimum
contacts, and that Plaintiffs’ claims arose out of those activities, the court next considers if
personal jurisdiction would be constitutionally reasonable. See ALS Scan, Inc., 293 F.3d at 712.
In weighing constitutional reasonableness, the court considers: (1) the burden on the moving
Defendants of litigating in South Carolina; (2) the interest of South Carolina in adjudicating the

dispute; (3) Plaintiffs’ interest in obtaining convenient and effective relief; (4) the shared interest
of the states in obtaining efficient resolution of disputes; and (5) the interests of the states in
furthering social policies. See Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 279
(4th Cir. 2009). Although McCormick, Pittman and their respective firms face some burdens in
defending the Plaintiffs’ claims in South Carolina, those burdens neither offend the traditional
notions of fair play and substantial justice, nor put McCormick, Pittman and their respective
firms at a severe disadvantage. The court also concludes that South Carolina has an interest in
the resolution of a lawsuit filed by its citizens. As a result, the court finds that the exercise of
personal jurisdiction over McCormick, Pittman and their respective firms would not be
constitutionally unreasonable.
Accordingly, the court finds that Plaintiffs have met their burden to show this court’s
personal jurisdiction over David O. McCormick; the law firm Cumbest Cumbest Hunter &
McCormick; Crymes G. Pittman; and the law firm Pittman, Germany, Roberts & Welsh, LLP.
The court finds that the remaining moving Defendants’ alleged contacts are too attenuated to
support personal jurisdiction in this court.
IV.

Conclusion
For the foregoing reasons, this court hereby grants without prejudice the motions to

dismiss filed by John W. Barrett; Barrett Law Group, P.A.; Paul T. Benton; Eugene C. Tullos;
Tullos & Tullos; and Rance N. Ulmer. The court denies the motions to dismiss filed by David O.
McCormick; Cumbest Cumbest Hunter & McCormick; Crymes G. Pittman; and Pittman,
Germany, Roberts & Welsh, LLP.
IT IS SO ORDERED.

March 21, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge