Hodjera et al v. BASF Catalysts, LLC et al

Filing 162

ORDER granting Defendant Dana Companies, LLC.'s 72 Motion to Dismiss; Plaintiffs' claims against Dana Cos. are dismissed without prejudice, by Judge Robert S. Lasnik. (Dana Companies, LLC terminated.) (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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Defendants.

ORDER GRANTING DEFENDANT
DANA COMPANIES, LLC’S
MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION

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This matter comes before the Court on defendant Dana Companies, LLC’s motion to

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dismiss for lack of personal jurisdiction. Dkt. # 72. Plaintiffs Matthew and Sylvia Hodjera, a

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

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

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Defendant Dana Companies, LLC (“Dana Cos.”) moves to dismiss, arguing that this Court lacks

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personal jurisdiction over it. Having reviewed the memoranda, declarations, and exhibits

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submitted by the parties, the Court grants the motion for the reasons that follow.1

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The Court concludes that this matter is suitable for resolution without oral argument.
Accordingly, Dana Cos.’s request for argument, Dkt. ## 72, 92, and plaintiffs’ request for argument,
Dkt. # 85, are denied.

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ORDER GRANTING DEFENDANT DANA
COMPANIES, LLC’S MOTION TO DISMISS - 1

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,

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Mr. 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 defendants have moved to dismiss for lack of personal

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jurisdiction.

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II. DISCUSSION
Dana Cos. argues that the complaint fails to allege facts supporting personal jurisdiction

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over it. Dana Cos. is a Virginia corporation with its principal place of business in Ohio. Dkt.

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# 72-3, ¶¶ 2, 5. Since its creation through corporate reorganization in 2007, Dana Cos.’s only

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significant activity has been to manage assets and liabilities associated with asbestos personal

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injury claims arising from the activities of the former Dana Corporation. Id., ¶¶ 2–4. Dana Cos.

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is not registered to do business in Washington; nor has it appointed a registered agent here. Id.,

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¶ 7. Dana Cos. does not have facilities, real property, offices, or employees in Washington. Id.,

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¶¶ 6–7. The complaint’s only allegations specific to Dana Cos. are that it has “been engaged in

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the mining, processing, manufacture, sale, and distribution of asbestos or asbestos-containing

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ORDER GRANTING DEFENDANT DANA
COMPANIES, LLC’S MOTION TO DISMISS - 2

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products and machinery requiring or calling for the use of asbestos and asbestos-containing

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products,” Dkt. # 1-1 at 5, and that it “knew or should have known of the specific medical and

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scientific data, literature and test results relating to the manufacture, as well as to the grinding

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and drilling, of automobile asbestos containing brake linings and/or clutch friction materials,

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which first began to be known or knowledgeable to defendants in the 1930's,” Dkt. # 1-1 at

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11–12. The complaint does not allege that Dana Cos.’s products were present in Toronto

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between 1986 and 1994. 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 Dana Cos. 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,2 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. Because Dana Cos. is not incorporated in Washington and does not have its

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principal place of business in Washington, the Court agrees that it lacks general personal

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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 DEFENDANT DANA
COMPANIES, LLC’S MOTION TO DISMISS - 3

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jurisdiction over Dana Cos. See Daimler AG, 134 S. Ct. at 760–61 (quoting Goodyear Dunlop

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Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

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B.

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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 exposure to “asbestos

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and asbestos-containing products that were mined, manufactured, produced, and/or placed into

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the stream of commerce by the defendants in this case.” Dkt. # 85 at 3. To establish personal

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jurisdiction over Dana Cos., plaintiffs allege that Dana Corporation, Dana Cos.’s predecessor-in-

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interest, purposefully availed itself of this Washington forum by designing and manufacturing

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automotive sealing products for “every major vehicle producer in the world,” and by operating a

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manufacturing plant in Washington state. Dkt. # 85 at 8–9. Plaintiffs attach a print-out from

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Dana Cos.’s website, which claims that “nearly all the familiar brands and models of automobile

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manufacturers worldwide are equipped with” sealing products manufactured by a subsidiary of

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Dana Corporation. Dkt. # 86-1 at 426.

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Still, 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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Dana Cos.’s contacts with Washington. See Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir.

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2007). Instead, plaintiffs allege simply that “the products defendant has sold in Washington

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include the same kind of products with which plaintiff worked, causing his exposure to

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asbestos.” Dkt. # 85 at 10. Mr. Hodjera’s history of working with “similar” products in Toronto

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fails to establish specific jurisdiction over Dana Cos. in Washington.

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ORDER GRANTING DEFENDANT DANA
COMPANIES, LLC’S MOTION TO DISMISS - 4

Accordingly, plaintiffs’ claims against Dana Cos. must be dismissed for lack of personal

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jurisdiction.

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C.

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Leave to Amend
Plaintiffs alternatively request leave to amend. Dkt. # 80 at 12 n.4. “[A] district court

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

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

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

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Rule 11 obligations, amend their complaint to include allegations remedying the deficiencies

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identified in this order, they may file a motion to amend and attach a proposed pleading for the

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Court’s consideration by Friday, June 2, 2017.

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For all the foregoing reasons, Dana Cos.’s motion to dismiss, Dkt. # 72, is GRANTED.
Plaintiffs’ claims against Dana Cos. are dismissed without prejudice.

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DATED this 23rd 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 DEFENDANT DANA
COMPANIES, LLC’S MOTION TO DISMISS - 5