Hodjera et al v. BASF Catalysts, LLC et al

Filing 186

ORDER denying plaintiff's 164 Motion to Amend Complaint, signed by Judge Robert S. Lasnik. (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,
v.

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BASF CATALYSTS LLC, et al.,

Case No. C17-48RSL
ORDER DENYING PLAINTIFFS’
MOTION FOR LEAVE TO AMEND
COMPLAINT

Defendants.

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This matter comes before the Court on plaintiffs’ motion for leave to amend their

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complaint. Dkt. # 164. The Court previously dismissed without prejudice the plaintiffs’ claims

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against defendants Whittaker, Clark & Daniels, Inc., Volkswagen Group of America, Inc.,

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Volkswagen Aktiengesellschaft, Volkswagen Group of Canada, Dana Companies, LLC, Dana

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Canada Corp., Imerys Talc America Inc., and Honeywell International Inc., but indicated that if

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plaintiffs were able to remedy the deficiencies identified, they were free to move to amend their

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complaint by Friday, June 2, 2017. Dkt. ## 153, 155, 156, 157, 162, 163. This motion follows.

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Having reviewed the memoranda of the parties and the remainder of the record, the Court denies

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plaintiffs’ 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, defendants’ requests for argument, Dkt. ## 170, 171, 172, are denied.

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ORDER DENYING PLAINTIFFS’ MOTION
FOR LEAVE TO AMEND COMPLAINT - 1

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

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

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2016, Mr. Hodjera was diagnosed with mesothelioma. Id. On December 2, 2016, plaintiffs filed

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suit in King County Superior Court, alleging that Mr. Hodjera’s mesothelioma had been

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proximately caused by the manufacture, sale, and/or distribution of asbestos-containing products

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by the following defendants: BASF Catalysts LLC; BorgWarner Morse Tec Inc.; Central

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Precision Limited; Charles B. Chrystal Company, Inc.; Dana Companies, LLC; Dana Canada

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Corp.; DAP Products, Inc.; Felt Products Mfg. Co.; Honeywell International Inc.; Imerys Talc

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America, Inc.; Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Pneumo

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Abex LLC; Union Carbide Corporation; Vanderbilt Minerals LLC; Volkswagen

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Aktiengesellschaft; Volkswagen Group of Canada; Volkswagen Group of America, Inc.;

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Whittaker, Clark & Daniels, Inc.; and Does 1–350, inclusive. Dkt. # 1-1 at 2–3. On January 11,

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2017, defendant Volkswagen Group of America, Inc. removed the case. Dkt. # 1. As noted

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above, the Court granted various motions to dismiss on the grounds that plaintiffs’ original

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complaint lacked sufficient factual allegations to establish specific jurisdiction in Washington.

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Dkt. ## 153, 155, 156, 157, 162, 163.

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Courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ.

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P. 15(a)(2). There is a “strong policy in favor of allowing amendment” after “considering four

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factors: bad faith, undue delay, prejudice to the opposing party, and the futility of amendment.”

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Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). The underlying purpose of Rule 15 is “to

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facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith,

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203 F.3d 1122, 1127 (9th Cir. 2000). However, if the proposed amendment would be futile (i.e.,

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it would be immediately subject to dismissal if challenged under Rule 12(b)(6)), there is no

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reason to put defendants through the unnecessary expense and delay of responding to the

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amendment. Nordyke v. King, 644 F.3d 776, 787 n.12 (9th Cir. 2011).

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Plaintiffs’ proposed amended complaint substantially elaborates on the claims raised in

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ORDER DENYING PLAINTIFFS’ MOTION
FOR LEAVE TO AMEND COMPLAINT - 2

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their original complaint. See Dkt. # 164-1. The proposed amended complaint now contains

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detailed factual allegations about Mr. Hodjera’s work in an automotive repair department in

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Ontario, Canada during the summer of 1986, including allegations that Mr. Hodjera worked with

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vehicles and parts containing asbestos that were manufactured and/or distributed by various

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defendants. Dkt. # 164-1 at 7–11.

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Plaintiffs’ proposed amended complaint does not, however, remedy the jurisdictional

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deficiencies identified in the Court’s earlier orders. As in their original complaint, plaintiffs

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argue that specific jurisdiction in Washington exists over various corporate defendants whose

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products exposed Mr. Hodjera to asbestos in Canada. Accordingly, plaintiffs still fail to satisfy

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the second prong of the specific jurisdiction test: the requirement that their claims arise out of

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the defendant’s purposeful contacts with the forum state. There is no allegation that

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Mr. Hodjera’s asbestos exposure would not have occurred but for the defendants’ contacts with

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Washington. See Doe v. American Nat. Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997).

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Because plaintiffs’ proposed amended complaint fails to remedy the previously identified

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jurisdictional deficiencies in their original complaint, amendment of plaintiffs’ complaint to

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reinitiate suit against the dismissed defendants – Whittaker, Clark & Daniels, Inc.; Volkswagen

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Group of America, Inc.; Volkswagen Aktiengesellschaft; Volkswagen Group of Canada; Dana

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Companies, LLC; Dana Canada Corp.; Imerys Talc America Inc.; and Honeywell International

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Inc. – would be futile. See Nordyke, 644 F.3d at 787 n.12. The claims against those defendants,

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which were previously dismissed without prejudice, are hereby dismissed with prejudice.

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For the foregoing reasons, plaintiffs’ motion for leave to amend their complaint (Dkt.
# 164) is DENIED.

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Dated this 31st day of July, 2017.
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A

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Robert S. Lasnik
United States District Judge

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ORDER DENYING PLAINTIFFS’ MOTION
FOR LEAVE TO AMEND COMPLAINT - 3