Van Dusseldorp v. Continental Casualty Company et al

Filing 63

ORDER granting in part and denying in part as moot 19 Motion to Dismiss. Signed by Chief Judge Jeffrey L. Viken on 9/11/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5073-JLV

LEONA VAN DUSSELDORP,
Plaintiff,

ORDER

vs.
CONTINENTAL CASUALTY COMPANY,
CNA FINANCIAL CORPORATION, and
LONG TERM CARE GROUP, INC.,
Defendants.
INTRODUCTION

Plaintiff Leona Van Dusseldorp filed a multi-count complaint against the
defendants. (Docket 1). Defendant CNA Financial Corporation filed a motion
seeking its dismissal. (Docket 19). Plaintiff resists the motion. (Docket 28).
For the reasons stated below, defendant’s motion to dismiss is granted.
ANALYSIS
Plaintiff’s complaint asserts the following claims against all defendants:
count I, breach of contract; count II, bad faith; count III, misrepresentation
under SDCL § 58-33-5; and count IV, declaratory judgment. (Docket 1 at
pp. 4-6). The complaint alleges defendant Continental Casualty Company
(“Continental”) is a corporation and subsidiary of CNA Financial Corporation
(“CNA Financial” or “Defendant”). Id. ¶¶ 3 & 4. The complaint alleges
Continental and CNA Financial transact the business of insurance and
insurance services under the name “CNA,” which sold a long-term insurance

policy to Ms. Van Dusseldorp in 2002. Id. ¶ 6 & 20. It is alleged Long Term
Care Group, Inc., (“LTCG”) administers claims for CNA and administered the
claim which is the subject of this litigation. Id. ¶ 14 & 15. It is further alleged
the defendants denied Ms. Van Dusseldorp’s claim for long-term care benefits on
grounds not appearing in the policy. Id. ¶ 36. The complaint makes a number
of other allegations not directly related to the issue presented by the motion to
dismiss. Ms. Dusseldorp seeks an interpretation of the insurance policy which
is the subject of the litigation, together with compensatory damages, punitive
damages and attorney’s fees. Id. at p. 6. The complaint alleges the court has
diversity jurisdiction pursuant to 28 U.S.C. § 1332. Id. ¶ 19.
PERSONAL JURISDICTION
CNA Financial moves to dismiss the complaint against it pursuant to Fed.
R. Civ. P. 12(b)(2). (Docket 19). That section provides “a party may assert the
following defenses by motion: . . . lack of personal jurisdiction.” Fed. R. Civ. P.
12(b)(2).
In a diversity action the court applies the substantive law of the forum
state. See Jordan v. NUCOR Corp., 295 F.3d 828, 834 (8th Cir. 2002).
“[F]ederal courts sitting in diversity cases, when deciding questions of
‘substantive’ law, are bound by state court decisions as well as state statutes.”
Hanna v. Plumer, 380 U.S. 460, 465 (1965) (referencing Erie R. Co. v. Tompkins,
304 U.S. 64 (1938)). See also In re Baycol Products Litigation, 616 F.3d 778,
785 (8th Cir. 2010) (“in a suit based on diversity of citizenship jurisdiction the
2

federal courts apply federal law as to matters of procedure but the substantive
law of the relevant state.”) (internal citations omitted). In this case, the forum
state is South Dakota, so the court will apply South Dakota law.
South Dakota’s long-arm statute provides in relevant part:
Any person is subject to the jurisdiction of the courts of this state as
to any cause of action arising from the doing personally, through
any employee, through an agent or through a subsidiary, of any of
the following acts:
(1)

The transaction of any business within the state;

(2)

The commission of any act which results in accrual
within this state of a tort action; . . .

(4)

Contracting to insure any person, property, or risk
located within this state at the time of contracting;
. . . [and]

(14) The commission of any act, the basis of which is not
inconsistent with the Constitution of this state or
with the Constitution of the United States.
SDCL § 15-7-2. CNA Financial acknowledges “South Dakota’s long-arm statute
confers jurisdiction to the fullest extent permitted by the Constitution.” (Docket
20 at p. 3) (referencing Bell Paper Box, Inc. v. Trans Western Polymers, Inc.,
53 F.3d 920, 921 (8th Cir. 1995); Ventling v. Kraft, 161 N.W.2d 29, 30 (S.D.
1968)).
The crux of defendant’s motion is that the court has no personal
jurisdiction over CNA Financial. Id. at p. 1. Defendant asserts it does not have
the requisite minimum contacts with South Dakota to be subject to its
jurisdiction under to the state’s long-arm statute. Id. at pp. 3-5. CNA
3

Financial argues it “simply has no contacts with South Dakota.” Id. at p. 5.
For this reason, defendant argues the court has neither “general jurisdiction” nor
“specific jurisdiction” over it. Id. at pp. 6-9.
“When personal jurisdiction is challenged by a defendant, the plaintiff
bears the burden to show that jurisdiction exists.” Fastpath, Inc. v. Arbela
Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014). “To successfully survive a
motion to dismiss challenging personal jurisdiction, a plaintiff must make a
prima facie showing of personal jurisdiction over the challenging defendant.”
Id. That prima facie showing is accomplished by alleging in the complaint
sufficient facts to support “a reasonable inference that defendant[] may be
subjected to jurisdiction in the forum state.” Id. (internal citation omitted).
Defendant’s challenge to jurisdiction must be supported by affidavits and
exhibits. Id. If plaintiff’s jurisdictional claim is challenged, plaintiff may not
rely only on the pleadings but must present affidavits and exhibits opposing the
motion. Id. If no hearing is held on defendant’s motion, the court “must view
the evidence in a light most favorable to the plaintiff and resolve factual conflicts
in the plaintiff’s favor; however, the party seeking to establish the court’s
personal jurisdiction carries the burden of proof and that burden does not shift
to the party challenging jurisdiction.” Id.
Plaintiff acknowledges the court does not have general jurisdiction over
CNA Financial. (Docket 28 at p. 34). She alleges the court has specific

4

jurisdiction over this defendant because of CNA Financial’s “involvement in this
dispute.” Id. at p. 33.
“Specific jurisdiction refers to jurisdiction over causes of action arising
from or related to a defendant’s actions within the forum state . . . .” Fastpath,
Inc., 760 F.3d at 820 (internal citations omitted). “Specific personal jurisdiction
can be exercised by a federal court in a diversity suit only if authorized by the
forum state’s long-arm statute and permitted by the Due Process Clause of the
Fourteenth Amendment.” Id. (internal citations omitted). Because South
Dakota’s long-arm statute expands the state’s jurisdiction “to the widest due
process parameters allowed by the United States Constitution, [the court’s]
inquiry is limited to whether the exercise of personal jurisdiction comports with
due process.” Id. (internal quotation marks and citations omitted).
“Due process requires that a non-resident have minimum contacts with
the forum state such that the maintenance of the lawsuit does not offend
traditional notions of fair play and substantial justice.” Id. (internal references
omitted). “Minimum contacts is based on the notion that those who live or
operate primarily outside a State have a due process right not to be subjected to
judgment in its courts as a general matter.” Id. (internal quotation marks and
citation omitted). “Sufficient minimum contacts requires some act by which the
defendant purposely avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of its laws.” Id. at
821 (internal quotation marks and citations omitted). “A defendant’s contacts
5

with the forum state must be sufficient so that a non-resident defendant should
reasonably anticipate being haled into court there.” Id. at 820-21.
The United States Court of Appeals for the Eighth Circuit “established a
five-factor test to determine the sufficiency of a non-resident defendant’s
contacts with the forum state.” Id. at 821. Those factors are: “1) the nature
and quality of contacts with the forum state; 2) the quantity of the contacts;
3) the relation of the cause of action to the contacts; 4) the interest of the forum
state in providing a forum for its residents; and 5) convenience of the parties.”
Id. The district court is directed to “give significant weight to the first three
factors.” Id.
CNA Financial contends plaintiff does not satisfy any of the Eighth Circuit
factors because the defendant:
1.

Does not engage in any business in South Dakota;

2.

Is not incorporated in South Dakota;

3.

Owns no property, has no offices or employees in South
Dakota;

4.

Is not an insurer or issued an insurance policy in South
Dakota or elsewhere;

5.

Has never received insurance premiums in any state;

6.

Has never hired claims adjusters or adjusted an insurance
claim in any state;

7.

Is incorporated in Delaware as a publically-traded holding
company; and

8.

Has its principal place of business in Illinois.
6

(Docket 20 at pp. 4-5) (internal affidavit and exhibits omitted).
Plaintiff counters defendant’s position on three theories. (Docket 28 at
pp. 4-7). She asserts the evidence supports a claim of specific jurisdiction for
the following reasons: (1) joint venture; (2) alter ego or veil piercing; or (3) direct
involvement by CNA Financial in Ms. Van Dusseldorp’s case. Id. The court will
separately address each of these potential grounds for asserting personal
jurisdiction.
A.

JOINT VENTURE

Plaintiff argues CNA Financial acted with Continental to transact business
under the name “CNA” to market long-term care policies. Id. at p. 4. Applying
South Dakota law, plaintiff asserts that because CNA Financial and Continental
are doing business under the CNA umbrella, they are an unincorporated
association which may be sued. Id. at 5. Plaintiff’s reference is to SDCL
§ 15-6-17(b) which provides:
When two or more persons associated in any business, transact
such business under a common name, whether it comprises the
names of such persons or not, the associates may sue or be sued by
such common name, the summons in such cases being served on
one or more of the associates. The judgment in the action shall
bind the joint property of all the associates, and the individual
property of the party or parties served with process, in the same
manner as if all had been named defendants and had been sued
upon their joint liability.
CNA Financial acknowledges it is the parent company of The Continental
Corporation, which is the parent company of Continental. (Docket 20-1 ¶ 3).
Defendant admits that CNA is not a company, but rather is a service mark
7

registered by CNA Financial with the United States Patent and Trademark
Office.1 Id. ¶ 4. Along with other CNA Financial subsidiaries, Continental is
“permitted to use this service mark and do so in their insurance underwriting
and claims activities.” Id.
Plaintiff submits that the December 4, 2015, letter denying her claim for
benefits was on CNA letterhead and “signed by Patricia Cephus, Assistant Vice
President of Long Term Care Operations for CNA.” (Docket 28 at p. 5)
(referencing Docket 28-5). While the letter specifically indicates it was issued on
behalf of Continental, plaintiff claims Ms. Cephus was never an employee of
Continental. Id. (comparing Docket 28-5 to Docket 28-1). Plaintiff argues that
while Ms. Cephus’ letter and resume indicate she is employed by CNA, there is no
reference in either document to her being employed by Continental, the only
entity CNA Financial claims had “any connection” to plaintiff’s long-term care
policy. (Docket 28 at p. 5). Because of this lack of separation, plaintiff
contends “the law imputes Continental’s contacts with Leona Van Dusseldorp to
[CNA Financial].” Id. at p. 4.
Defendant counters that plaintiff has not presented any evidence which
would allow a jury to find that CNA Financial and Continental operate as a joint
venture. (Docket 31 at p. 14). Defendant contends it “has submitted evidence
showing that it indirectly owns Continental, and that it has no voice in the

Plaintiff erroneously identifies CNA as “a federally registered trademark.”
(Docket 28 at p. 15). The court will recognize CNA as a federally registered
service mark and identify it as that when referencing plaintiff’s arguments.
8
1

operation of Continental’s insurance business beyond that of any indirect
shareholder.” Id. (italics in original) (referencing Docket 20-1 ¶ 3). CNA
Financial argues “no reasonable jury could conclude that CNAF and Continental
have a ‘right to share in the profits and a duty to share in any losses’ of their
alleged joint venture.” Id. (citing Harriman v. United Dominion Industries, Inc.,
693 N.W.2d 44, 50 (S.D. 2005).

Defendant submits “plaintiff has not made a

prima facie showing that [CNA Financial] and Continental are, or ever were,
members of a joint venture.” (Docket 31 at pp. 14-15).
The South Dakota Supreme Court identifies “six elements necessary to
establish a joint venture.” Harriman, 693 N.W.2d at 50. Those are:
(1)

an intent to enter into a joint venture;

(2)

an agreement, express or implied, among members of the
group;

(3)

a common purpose to be carried out by the group;

(4)

a joint pecuniary interest in that purpose;

(5)

an equal right to a voice in the direction and control of the
group; and

(6)

a right to share in the profits and a duty to share in any losses.

Id. (internal citation omitted). South Dakota requires that “all six elements
must be satisfied in order to establish a joint venture.” Id. (internal citation
omitted).
In calendar year 2015, Continental did not distribute any of its profits to
CNA Financial as dividends or capital distributions. (Docket 20-2 at p. 181).
Continental distributed $900,000,000 as dividends to The Continental
9

Corporation. Id. How much money, if any, was distributed by The Continental
Corporation to CNA Financial as dividends or capital distributions is not part of
the record in this case.
Simply because CNA Financial and Continental may have a licensing
agreement which permits Continental to use the service mark “CNA” does not
create a joint venture. Nelson v. International Paint Co., Inc., 734 F.2d
1084 (5th Cir. 1984); Torres v. Goodyear Tire & Rubber Co., 867 F.2d
1234 (9th Cir. 1989), rev’d on other grounds, 901 F.2d 750 (9th Cir. 1990);
Fletcher v.. Atex, Inc., 68 F.3d 1451 (2nd Cir. 1995); and Yoder v. Honeywell Inc.,
104 F.3d 1215, 1222 (10th Cir. 1997).
The court finds plaintiff has not made a prima facie showing that CNA
Financial and Continental were engaged in a joint venture so as to allow the
court to assert personal jurisdiction over the defendant.2 Fastpath, Inc.,
760 F.3d at 820.
B. ALTER EGO OR VEIL PIERCING
Plaintiff contends CNA Financial “uses Continental as a mere
instrumentality, so South Dakota law disregards the formal separation of the two
entities.” (Docket 28 at p. 5). Plaintiff argues because Continental’s answer

Plaintiff fails to acknowledge that if CNA Financial and Continental were
an unincorporated association, the court would not have diversity jurisdiction
because an unincorporated association is a citizen of every state in which any
member is a citizen. See Stouffer Corp. v. Breckenridge, 859 F.2d 75, 76 (8th
Cir. 1989) (“An unincorporated association . . . has traditionally been viewed as a
citizen of the state of each of its constituent members.”) (referencing United
Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145 (1965) (other citations
omitted).
2

10

admits jurisdiction and because defendant is the alter ego of Continental, the
court has personal jurisdiction over CNA Financial. Id.
In South Dakota, “[a] parent corporation is liable for the acts of its
subsidiary under the instrumentality exception when (1) the parent controls the
subsidiary to such a degree as to render the latter the mere instrumentality of
the former; and (2) adherence to the rule of corporate separateness would
produce injustices and inequities.” Glanzer v. St. Joseph Indian School,
438 N.W.2d 204, 207 (S.D. 1989). “Similarly, a parent corporation is liable for
the acts of its subsidiary when an agency relationship exists between them.” Id.
Addressing the first element, the Glanzer court identified factors which should be
evaluated to determine the extent of control being exerted by the parent company
to make it responsible for the conduct of its subsidiary. Those are:
(a)

The parent corporation owns all or most of the capital stock of
the subsidiary.

(b)

The parent and subsidiary corporations have common
directors or officers.

(c)

The parent corporation finances the subsidiary.

(d)

The parent corporation subscribes to all the capital stock of
the subsidiary or otherwise causes its incorporation.

(e)

The subsidiary has grossly inadequate capital.

(f)

The parent corporation pays the salaries and other expenses
or losses of the subsidiary.

(g)

The subsidiary has substantially no business except with the
parent corporation or no assets except those conveyed to it by
the parent corporation.
11

(h)

In the papers of the parent corporation or in the statements of
its officers, the subsidiary is described as a department or
division of the parent corporation, or its business or financial
responsibility is referred to as the parent corporation’s own.

(i)

The parent corporation uses the property of the subsidiary as
its own.

(j)

The directors or executives of the subsidiary do not act
independently in the interest of the subsidiary but take their
orders from the parent corporation in the latter’s interest.

(k)

The formal legal requirements of the subsidiary are not
observed.

Id. at 207. Not all eleven factors need be present and the list is not intended to
be exhaustive. Id. Each case needs to be resolved on its “own underlying
facts.” Id.
For convenience the court will use the same alphabetical designation used
in Glanzer for identifying plaintiff’s argument, but without citation to plaintiff’s
referenced exhibits. Plaintiff’s argument focuses on the following factors:
(a)

Parent Ownership. CNA Financial is the parent company of a
number of subsidiaries, including Continental, and they all
use the same organizational designation, CNA. (Docket 28 at
pp. 19-20) They all share the same physical business
address, telephone number, and website. Id. CNA
Financial appoints an “Executive Vice President, Worldwide
Property & Casualty Claim of the CNA Insurance Companies,”
without having its own property and casualty business. Id.
at p. 22. It also has a “President, Long Term Care of the CNA
Insurance Companies,” although it claims to not be in the
long-term care insurance business. Id.

(b)

Common Officers and Directors. CNA Financial appoints
directors and officers from CNA Financial to serve on the
boards of its subsidiaries. Id. at pp. 22-24.

12

(d)

Parent subscribes all of subsidiary’s stock. CNA Financial
owns The Continental Corporation which owns Continental.
(Docket 20-1 ¶ 3).

(h)

Subsidiary’s business is parent’s own. The CNA association
of businesses is the business of CNA Financial. (Docket 28 at
p. 22).

(j)

Subsidiary officers do not act independently. The CNA
association presents itself as a single company to the world
and all the business of the CNA associations is CNA
Financial’s own business. Id. at p. 31.

Plaintiff cites Parvin v CNA Financial Corp., No. 6:10-cv-6332, 2012 WL
5381568 (D. OR. October 31, 2012) as authority for piercing the corporate veil.
(Docket 28 at p. 30). As of the date of its decision in Parvin, the court found that
CNA’s webpage declared:
CNA Financial Corporation is one of the largest commercial property
and casualty insurance organizations in the United States providing
insurance protection to more than one million businesses and
professionals in the U.S. and internationally. . . . CNA, a financial
holding company, conducts its property and casualty insurance
operations primarily through Continental Casualty Company . . . .
Parvin, 2012 WL 5381568, *3 (internal exhibit references omitted). Because
plaintiff had shown that nearly all of the officers of Continental and CNA
Financial were the same, the Parvin court concluded “[p]laintiff has established
sufficient facts to raise a possibility that [Continental] is simply an alter ego of
[CNA Financial] . . . .” Id., 2012 WL 5381568, *4.
Plaintiff acknowledges the language cited in Parvin is no longer on CNA
Financial’s website. (Docket 28 at p. 31). Plaintiff contends, however, that
“Loews Corporation [which] owns 90% of [CNA Financial’s] stock,” has a website
13

with “that same language.”3 Id. According to plaintiff, Loews Corporation’s
website contains the following declaration:
CNA Financial Corporation is one of the largest property and
casualty insurance organizations in the United States, providing
insurance protection to more than one million businesses and
professionals in the U.S. and internationally. CNA’s insurance
products include standard commercial lines, specialty lines, surety,
and other property and casualty coverages. CNA also provides
customers with risk management and information services, risk
control, warranty and claims administration services.
Id. at pp. 31-32 (internal reference omitted). Plaintiff argues she has shown that
CNA Financial “functions as a single business with its subsidies as segments.”
Id. at p. 32. Plaintiff contends “[a] jury could reasonably draw the same
conclusion.” Id.
Defendant counters plaintiff’s argument by addressing the same factors
and other factors not addressed by plaintiff:
(a)

Parent Ownership. Continental is a subsidiary of a
subsidiary of CNA Financial and plaintiff offered no proof that
it owns any of Continental’s stock. (Docket 31 at p. 9).

(b)

Common Officers and Directors. While CNA Financial and
Continental have common directors, there is no evidence that
they are not wearing their “subsidiary hats” and not the
“parents hats” when conducting business. Id. at p. 10.

(d)

Parent subscribes all of subsidiary’s stock. Same argument
as subsection (a) above.

(e)

Inadequate capital. According to Continental’s December 31,
2015, annual statement it “has Net Admitted Assets of

See Docket 20-2 at p. 15 (“Loews Corporation . . . owns approximately
90% of the outstanding common stock of [CNA Financial] as of December 31,
2015.”)
14
3

$43,531,436, 609.” (Docket 20-1 ¶ 22); see also Docket 31 at
p. 11.
(j)

Subsidiary officers do not act independently. Same
argument as subsection (b) above.

Defendant argues plaintiff has not satisfied the first prong of the test to
pierce the corporate veil and failed to address the second prong—“piercing the
veil is necessary to avoid injustice.” Id. at p. 11. Because of Continental’s
assets strength, defendant contends that if plaintiff were to recover a judgment
against Continental, it “would be able to pay [the judgment] hundreds of times
over.” Id.
Plaintiff did not provide any evidence addressing the following Glanzer
factors:
(c)

Parent finances the subsidiary.

(f)

Parent pays the salaries, expenses or losses of the subsidiary.

(g)

Subsidiary has no business apart from parent.

(i)

Parent uses subsidiary’s property as its own.

(k)

Legal requirements of the subsidiary not observed.

The court finds these factors are important to the analysis. The record discloses
that Continental generates millions of dollars through its own business and pays
its own salaries and expenses. (Docket 20-1). There is no evidence that the
defendant finances the business of Continental or uses Continental’s property as
its own. Because there is evidence of independence and self-sufficiency on the
part of Continental, the absence of any evidence that the subsidiary’s officers
15

and directors are not acting in the best interest of Continental when wearing
their “subsidiary hats” or failing to honor the legal requirements of Continental’s
governing rules is significant. United States v. Bestfoods, 524 U.S. 51, 69-70
(1998). “[T]here is no showing that the subsidiary is a dummy or a sham
corporation or undercapitalized.” McAllister-Lewis v. Goodyear Dunlop Tires N.
Am., Ltd., CIV 14-4103, 2017 WL 2312232, at *3 (D.S.D. May 24, 2017).
The court finds Continental is not a “mere instrumentality” of CNA
Financial. Glanzer, 438 N.W.2d at 207. The court further finds “adherence to
the rule of corporate separateness” will not create any injustice in the case. Id.
Plaintiff’s objection to defendant’s motion on the basis of piercing the corporate
veil is denied.
C.

DIRECT INVOLVEMENT IN PLAINTIFF’S CASE

Plaintiff argues CNA Financial was directly involved in Ms. Van
Dusseldorp’s case for a number of reasons. (Docket 28 at p. 25). Those
reasons are:
1.

The policy, while underwritten by Continental, contained the
“CNA” service mark which belonged to CNA Financial. Id.
(referencing Docket 20-3 at p. 1);

2.

The policy directs expenses be submitted to “CNA Insurance.”
Id. (referencing Docket 20-4 at p. 8);

3.

All correspondence contained the “CNA” service mark, which
is owned by CNA Financial. Id. at p. 26;

4.

Correspondence directed to Ms. Van Dusseldorp came from
CNA Financial “or the unincorporated association.” Id. at
p. 27 (referencing Docket 28-15);
16

5.

Correspondence referred to “CNA” 40 times while only
mentioning Continental as the underwriter twice. Id.
(referencing Docket 28-15);

6.

The denial letters came from CNA Financial, not Continental,
and were signed by an individual from “Claims Support, Long
Term Care Claims Department.” Id. at pp. 26-27; and

7.

All correspondence directed responses be sent to “CNA Claims
Administration,” not Continental. Id. at p. 27 (referencing
Dockets 280-5, 28-16, 28-17, 28-18, 28-19).

Plaintiff argues these facts satisfied her obligation to produce prima facie
evidence that CNA Financial “was involved in her case.” Id. at p. 31.
Defendant counters plaintiff’s argument contending plaintiff’s evidence is
“devoid of any mention of [CNA Financial].” (Docket 31 at p. 6). CNA Financial
contends plaintiff’s argument it “has claimed responsibility for the denial letters”
is without merit. Id. (italics omitted). Defendant argues it “submitted evidence
that it did not send the denial letters . . . and plaintiff has failed to meet her
burden of submitting contradictory evidence.” Id. at pp. 6-7 (italics omitted)
(referencing Docket 20-1 ¶ 20).
Plaintiff ignores the fact the first line of the policy in bold print identifies
the issuer as “Continental Casualty Company.” (Docket 20-3 at p. 1) (bold
omitted). The policy identifies Continental as “A Stock Company.” Id. While
the policy directs any questions to a Nashville, Tennessee, address, there is no
mention of CNA Financial or any other CNA company. Id.; see also id. at pp. 12
& 17-18. The policy is signed on behalf of Continental by “Cathy Klimek,” who

17

is identified as a “Senior Operations Officer,” again, with no mention of any other
CNA company or CNA Financial. Id.; see also id. at pp. 22-23.
While correspondence directed to Ms. Van Dusseldorp does contain the
“CNA” service mark, it also specifically identified the company of origination as
“Continental Casualty Company.” See, i.e., Dockets 28-15 at p. 2; 28-16 at p. 2;
28-17 at p. 2; 29-19 at p. 2. In only one piece of correspondence was “CNA”
identified without reference to Continental. See, i.e., Dockets 28-18 at p. 2.
The court finds plaintiff has not made a prima facie showing that CNA
Financial was directly involved in the issuance of Ms. Dusseldorp’s policy or
processing her benefits claims so as to allow the court to assert personal
jurisdiction over the defendant. Fastpath, Inc., 760 F.3d at 820.
OTHER MOTIONS
CNA Financial also filed motions pursuant to Fed. R. Civ. P. 9(b) and
12(b)(6). (Docket 19). Because the court concludes it has no personal
jurisdiction over CNA Financial, the court has no jurisdiction to resolve
defendant’s other motions. These motions are denied as moot.
ORDER
Based on the above analysis, it is
ORDERED that defendant CNA Financial Corporation’s motion to dismiss
on the basis of Fed. R. Civ. P. 12(b)(2) (Docket 19) is granted.
IT IS FURTHER ORDERED that the remainder of defendant CNA Financial
Corporation’s motion to dismiss (Docket 19) is denied as moot.
18

IT IS FURTHER ORDERED that CNA Financial Corporation is dismissed
as a defendant.
Dated September 11, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

19