Hodjera et al v. BASF Catalysts, LLC et al

Filing 188

ORDER granting defendant Imerys Talc America Inc.'s 159 Motion to Dismiss ; Plaintiffs' claims against Imerys Talc are dismissed with prejudice, signed by Judge Robert S. Lasnik. (SWT) (Imerys Talc America, Inc. terminated.)

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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
IMERYS TALC AMERICA INC.’S
MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION

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This matter comes before the Court on defendant Imerys Talc America Inc.’s motion to

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dismiss for lack of personal jurisdiction. Dkt. # 159. 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 Imerys Talc America Inc. (“Imerys Talc”) moves to dismiss, arguing that this Court

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lacks 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, Imerys Talc’s request for argument, Dkt. # 159, and plaintiffs’ request for argument, Dkt.
# 165, are denied.

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ORDER GRANTING DEFENDANT IMERYS
TALC AMERICA INC.’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

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Imerys Talc argues that the complaint fails to allege facts supporting personal jurisdiction

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over it. Imerys Talc is a Delaware corporation with its principal place of business in California.

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Dkt. # 160, ¶ 5. Imerys Talc does not mine talc or any other minerals in Washington. Id., ¶ 10.

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It does not have facilities, real property, offices, or employees in Washington. Id., ¶¶ 6–9. The

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complaint’s only allegations specific to Imerys Talc are that it “sold, distributed, and supplied

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asbestos and asbestos-containing products, which plaintiff came in contact with and utilized, and

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asbestos which plaintiff inhaled, causing his injuries and illnesses,” Dkt. # 1-1 at 9–10, that it

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“fail[ed] to warn of the health hazards of exposure to asbestos,” Dkt. # 1-1 at 10, 11, and that it

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“made misrepresentations regarding the safety of asbestos to the asbestos-product

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ORDER GRANTING DEFENDANT IMERYS
TALC AMERICA INC.’S MOTION TO DISMISS - 2

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manufacturers,” Dkt. # 1-1 at 10. The complaint does not allege that Imerys Talc’s products

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were present in Toronto 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 Imerys Talc. Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d

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1122, 1128-29 (9th Cir. 2003). Absent an evidentiary hearing, plaintiffs need only make,

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

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personal jurisdiction to avoid dismissal. Myers v. Bennett Law Offices, 238 F.3d 1068, 1071

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(9th Cir. 2001). Provided the long-arm statute of the state in which the Court sits permits the

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Court’s exercise of personal jurisdiction,2 there are two ways to establish that the Court has

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

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turn.

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A.

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 Imerys Talc 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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jurisdiction over Imerys Talc. See Daimler AG, 134 S. Ct. at 760–61 (quoting Goodyear

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Dunlop 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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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 IMERYS
TALC AMERICA INC.’S MOTION TO DISMISS - 3

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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 by his exposure to “asbestos and

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

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stream of commerce by the defendants in this case.” Dkt. # 165 at 3. To establish personal

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jurisdiction over Imerys Talc, plaintiffs allege that Charles Mathieu, Inc., Imerys Talc’s

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predecessor-in-interest, purposefully availed itself of this Washington forum by mining and

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processing talc, which was distributed by former defendant Whittaker, Clark & Daniels to

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defendant Johnson & Johnson for use in its “Shower-to-Shower” cosmetic talc product, which in

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turn was “intended for widespread distribution throughout North America.” Dkt. # 165 at 8.

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Plaintiffs further allege that Imerys Talc is licensed to do business in Washington state. Dkt.

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# 165 at 8. Plaintiffs attach depositions and a print-out from the Washington Secretary of State’s

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website supporting these allegations. Dkt. # 166-1.

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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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Imerys Talc’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. # 165 at 10. Mr. Hodjera’s history of working with “similar” products in

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Toronto fails to establish specific jurisdiction over Imerys Talc in Washington.

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Accordingly, plaintiffs’ claims against Imerys Talc must be dismissed for lack of personal
jurisdiction.

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ORDER GRANTING DEFENDANT IMERYS
TALC AMERICA INC.’S MOTION TO DISMISS - 4

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C.

Leave to Amend
Plaintiffs alternatively request leave to amend. Dkt. # 165 at 12–13. “[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). On June 2, 2017, plaintiffs moved for leave to

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file an amended complaint. Dkt. # 164. The Court denied that motion on July 31, 2017, finding

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that plaintiffs’ proposed amended complaint failed to cure the jurisdictional deficiencies in the

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original complaint. Because it appears that plaintiffs’ pleading as to Imerys Talc could not be

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cured by the allegation of other facts, the Court declines plaintiffs’ request for another

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opportunity to amend their complaint.

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D.

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Attorney’s Fees
In its discretion, the Court declines Imerys Talc’s request for attorney’s fees under RCW

4.28.185.

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For all the foregoing reasons, Imerys Talc’s motion to dismiss, Dkt. # 159, is GRANTED.
Plaintiffs’ claims against Imerys Talc are dismissed with prejudice.

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DATED this 31st day of July, 2017.

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A

Robert S. Lasnik
United States District Judge

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ORDER GRANTING DEFENDANT IMERYS
TALC AMERICA INC.’S MOTION TO DISMISS - 5