Hodjera et al v. BASF Catalysts, LLC et al

Filing 153

ORDER granting Defendant Whittaker, Clark & Daniels, Inc'S 29 Motion to Dismiss; striking unsigned motions to dismiss 17 and 18 , by Judge Robert S. Lasnik. Plaintiffs' claims against WCD are dismissed without prejudice. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MATTHEW HODJERA and SYLVIA
HODJERA,

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Plaintiffs,

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Case No. C17-48RSL

v.
BASF CATALYSTS LLC, et al.,

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ORDER GRANTING DEFENDANT
WHITTAKER, CLARK & DANIELS,
INC.’S MOTION TO DISMISS

Defendants.

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This matter comes before the Court on defendant Whittaker, Clark & Daniels, Inc.’s

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motion to dismiss. Dkt. ## 17, 18, 29.1 Plaintiffs Matthew and Sylvia Hodjera, a married

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couple, allege that Mr. Hodjera’s mesothelioma was proximately caused by various corporate

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defendants’ manufacture, sale, and/or distribution of asbestos-containing products. Defendant

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Whittaker, Clark & Daniels, Inc. (“WCD”) moves to dismiss, arguing that this Court lacks

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personal jurisdiction over it. WCD further argues that the complaint fails to include any factual

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allegations regarding WCD and thus fails to state a claim against it. Having reviewed the

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memoranda, declarations, and exhibits submitted by the parties, the Court grants the motion for

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Defendant Whittaker, Clark & Daniels, Inc. appears to have filed the same motion to dismiss
three times: twice on January 18, 2017, Dkt. ## 17, 18, then again the next day, Dkt. # 29. Because the
first two filings lack a valid signature as required by Fed. R. Civ. P. 11(a), see Dkt. # 17 at 8; Dkt. # 18
at 8, the Court hereby STRIKES those filings and treats Dkt. # 29 as the operative motion.

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ORDER GRANTING WHITTAKER, CLARK &
DANIELS, INC.’S MOTION TO DISMISS - 1

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the reasons that follow.2
I. BACKGROUND

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According to the complaint, Mr. Hodjera was exposed to asbestos or asbestos-containing

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products in Toronto, Ontario, between 1986 and 1994. Dkt. # 1-1 at 4. On May 20, 2016, Mr.

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Hodjera was diagnosed with mesothelioma. Id.

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On December 2, 2016, plaintiffs filed suit in King County Superior Court, alleging that

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Mr. Hodjera’s mesothelioma had been proximately caused by the manufacture, sale, and/or

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distribution of asbestos-containing products by the following defendants: BASF Catalysts LLC;

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BorgWarner Morse Tec Inc.; Central Precision Limited; Charles B. Chrystal Company, Inc.;

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Dana Companies, LLC; Dana Canada Corp.; DAP Products, Inc.; Felt Products Mfg. Co.;

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Honeywell International Inc.; Imerys Talc America, Inc.; Johnson & Johnson; Johnson &

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Johnson Consumer Companies, Inc.; Pneumo Abex LLC; Union Carbide Corporation;

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Vanderbilt Minerals LLC; Volkswagen Aktiengesellschaft; Volkswagen Group of Canada;

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Volkswagen Group of America, Inc.; Whittaker, Clark & Daniels, Inc.; and Does 1–350,

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inclusive. Dkt. # 1-1 at 2–3. On January 11, 2017, defendant Volkswagen Group of America,

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Inc. removed the case. Dkt. # 1. Various motions to dismiss are now pending before the Court.

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II. DISCUSSION

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WCD argues that the complaint fails to allege facts supporting either personal jurisdiction

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over WCD or a plausible claim for relief against WCD. Because the Court finds that it lacks

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personal jurisdiction over plaintiffs’ claims against WCD, it does not reach the question whether

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plaintiffs have successfully pled those claims.

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WCD is a New Jersey corporation with its principal place of business in Stamford,

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Connecticut. Dkt. # 19-2, ¶ 3. WCD ceased all active business operations in February 2004 and

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currently exists to manage assets and liabilities. Id., ¶ 4. WCD has no real property, offices,

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The Court concludes that this matter is suitable for resolution without oral argument.
Accordingly, plaintiffs’ request for argument, Dkt. # 51, is denied.

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ORDER GRANTING WHITTAKER, CLARK &
DANIELS, INC.’S MOTION TO DISMISS - 2

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employees, or registered agents in Washington state. Id., ¶¶ 5–8. The complaint contains no

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allegations regarding WCD: no mention of WCD’s product, no discussion of Mr. Hodjera’s

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contact with that product, no allegation that WCD’s products were present in Toronto between

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1986 and 1994. Indeed, after listing WCD as a defendant in the caption, the complaint does not

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mention WCD at all. See generally Dkt. # 1-1.
Due process requires a district court to have personal jurisdiction over a defendant in

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order to adjudicate a claim against it. Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014).

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Plaintiffs have the burden of demonstrating that the Court may exercise personal jurisdiction

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over WCD. Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122,

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1128-29 (9th Cir. 2003). Absent an evidentiary hearing, plaintiffs need only make, through the

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submission of pleadings and affidavits, a prima facie showing of facts supporting personal

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jurisdiction to avoid dismissal. Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir.

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2001). Provided the long-arm statute of the state in which the Court sits permits the Court’s

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exercise of personal jurisdiction,3 there are two ways to establish that the Court has personal

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jurisdiction over a particular defendant. Id. at 753-55. This order considers each in turn.

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A.

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General Jurisdiction
A defendant is subject to a court’s general personal jurisdiction when its contacts are “so

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constant and pervasive as to render it essentially at home” in the forum. Daimler AG, 134 S. Ct.

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at 751 (internal quotation and brackets omitted). General jurisdiction over a party ensures

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personal jurisdiction over that party for any claim, regardless of that claim’s relationship to the

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forum. Id. at 761. WCD argues that it has no contacts with Washington state, let alone contacts

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“so constant and pervasive as to render it essentially at home” here. Plaintiffs do not dispute this

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point. The Court lacks general jurisdiction over WCD.

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Washington’s long-arm statute, RCW 4.28.125, permits the exercise of personal jurisdiction to
the extent that due process allows. Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 771 (1989).

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ORDER GRANTING WHITTAKER, CLARK &
DANIELS, INC.’S MOTION TO DISMISS - 3

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B.

Specific Jurisdiction
A defendant may also be sued in a forum where it has minimal contacts, provided those

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contacts are purposefully directed at the forum, the claim arises out of those contacts, and the

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exercise of jurisdiction over that party is reasonable. See Pebble Beach Co. v. Caddy, 453 F.3d

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1151, 1155 (9th Cir. 2006).

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Plaintiffs argue that Mr. Hodjera’s illness was caused in part by his use of cosmetic

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products containing talc that WCD had sold. Dkt. # 51 at 2. To establish personal jurisdiction

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over WCD, plaintiffs argue that WCD purposefully availed itself of this Washington forum by

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selling talc to Johnson & Johnson for nationwide distribution in cosmetic products. Dkt. # 51 at

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2. Plaintiffs attach a portion of deposition testimony explaining that WCD built a talc plant,

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called Metropolitan Talc, with the goal of supplying customers with talc produced by that plant.

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Dkt. # 52-3 at 9. Plaintiffs also attach a 1970 letter from the president of Metropolitan Talc to

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the president of WCD, informing him that Johnson & Johnson was interested in ordering talc for

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use in its “Shower to Shower” product. Dkt. # 52-4 at 2.

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Even assuming that this attenuated connection is sufficient to show that WCD placed its

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products in the stream of interstate commerce, see Worldwide Volkswagen v. Woodson, 44 U.S.

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286, 297 (1980), plaintiffs fail to satisfy the second prong of the specific jurisdiction test: the

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requirement that their claim arise out of the defendant’s purposeful contacts with the forum state.

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According to the complaint, Mr. Hodjera’s asbestos exposure occurred in Toronto, Ontario. Dkt.

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# 1-1 at 4. There is no allegation that Mr. Hodjera’s exposure would not have occurred but for

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WCD’s contacts with Washington. See Doe v. American Nat. Red Cross, 112 F.3d 1048, 1051

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(9th Cir. 1997). Accordingly, Mr. Hodjera’s use of talc products in Toronto fails to establish

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specific jurisdiction over WCD in Washington, regardless of whether WCD sold the talc used in

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those products.

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Plaintiffs’ claims against WCD must be dismissed for lack of personal jurisdiction.

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ORDER GRANTING WHITTAKER, CLARK &
DANIELS, INC.’S MOTION TO DISMISS - 4

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C.

Leave to Amend
Plaintiffs alternatively request leave to amend. Dkt. # 51 at 12. “[A] district court should

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grant leave to amend even if no request to amend the pleading was made, unless it determines

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that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith,

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203 F.3d 1122, 1127 (9th Cir. 2000). To the extent plaintiffs can, consistent with their Rule 11

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obligations, amend their complaint to include allegations remedying the deficiencies identified in

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this order, they may file a motion to amend and attach a proposed pleading for the Court’s

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consideration by Friday, June 2, 2017.

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For all the foregoing reasons, WCD’s motion to dismiss, Dkt. # 29, is GRANTED.

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WCD’s unsigned motions to dismiss, Dkt. ## 17, 18, are STRICKEN. Plaintiffs’ claims against

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WCD are dismissed without prejudice.

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DATED this 17th day of May, 2017.

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A

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Robert S. Lasnik
United States District Judge

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ORDER GRANTING WHITTAKER, CLARK &
DANIELS, INC.’S MOTION TO DISMISS - 5