Hodjera v. BASF Catalysts LLC (W.D. Wash., May 17, 2017, removal or venue, as to Volkswagen Aktiengesellschaft)

Our plain-English summary of Hodjera v. BASF Catalysts LLC (U.S. District Court, Western District of Washington, May 17, 2017).

Matthew Hodjera and his wife Sylvia sued a number of companies in King County, Washington, claiming his mesothelioma was caused by asbestos-containing products the companies made, sold or distributed. The complaint said he was exposed in Toronto, Ontario, between 1986 and 1994, and he was diagnosed in May 2016. The case was removed to federal court in Seattle. Volkswagen AG, a German company that designs and makes Volkswagen vehicles, asked to be dismissed because Washington courts lacked personal jurisdiction over it. The court found no general jurisdiction, since Volkswagen AG is neither incorporated nor based in Washington. It also found no specific jurisdiction. Even if Volkswagen AG had reached out to the Washington market, the Hodjeras' claim did not arise from those contacts, because the exposure happened in Toronto. The court said that fairness to a dying plaintiff cannot replace the constitutional requirements. It dismissed the claims against Volkswagen AG without prejudice and let the plaintiffs move to amend by June 2, 2017.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Western District of Washington
• Decided: May 17, 2017
• Docket: Case No. C17-48RSL
• Stage: Jurisdiction, venue or removal
• State: Washington

Outcome. The court granted Volkswagen AG's motion to dismiss for lack of personal jurisdiction, dismissing the Hodjeras' claims against it without prejudice and allowing them to move to amend by June 2, 2017.

What the court held. Specific personal jurisdiction requires that the claim arise out of the defendant's purposeful contacts with the forum; exposure to similar products in Ontario did not arise from Volkswagen AG's contacts with Washington, and fairness to the plaintiff alone cannot supply jurisdiction.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Matthew Hodjera: mesothelioma

Who	Work	Where	When	Products
Matthew Hodjera		Toronto	1986-1994	brakes, clutches and friction materials, Volkswagen products

The defendants

• Volkswagen Aktiengesellschaft (manufacturer)
• Volkswagen Group of America, Inc.
• BASF Catalysts LLC (manufacturer)
• Johnson & Johnson (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Hodjera v. BASF Catalysts LLC (May 17, 2017). The court granted Volkswagen Group Canada, Inc.'s motion to dismiss for lack of personal jurisdiction and dismissed the plaintiffs' claims against it without prejudice, with leave to seek amendment by June 2, 2017.
• Hodjera v. BASF Catalysts LLC (May 17, 2017). The court granted Volkswagen Group of America's motion to dismiss for lack of personal jurisdiction, dismissing the Hodjeras' claims against it without prejudice and allowing them to move to amend by June 2, 2017.
• Hodjera v. BASF Catalysts LLC (May 17, 2017). The court granted Whittaker, Clark & Daniels, Inc.'s motion to dismiss for lack of personal jurisdiction, dismissing the Hodjeras' claims against it without prejudice and allowing them to move to amend by June 2, 2017.
• Hodjera v. BASF Catalysts LLC (May 23, 2017). The court granted Dana Companies, LLC's motion to dismiss for lack of personal jurisdiction, dismissing the Hodjeras' claims against it without prejudice and allowing them until June 2, 2017 to move to amend.
• Hodjera v. BASF Catalysts LLC (July 31, 2017). The court granted Honeywell International's motion for judgment on the pleadings for lack of personal jurisdiction, dismissing the Hodjeras' claims against Honeywell with prejudice and denying leave to amend.
• Hodjera v. BASF Catalysts LLC (July 31, 2017). The court granted Imerys Talc America Inc.'s motion to dismiss for lack of personal jurisdiction, dismissing the Hodjeras' claims against it with prejudice and denying leave to amend and Imerys's request for attorney's fees.
• Hodjera v. BASF Catalysts LLC (July 31, 2017). The court denied as moot the plaintiffs' motion for a priority trial setting, because the existing March 5, 2018 trial date already matched the seven-month timeline they requested.
• Hodjera v. BASF Catalysts LLC (July 31, 2017). The court denied the Hodjeras' motion to amend their complaint as futile and dismissed with prejudice the claims against Whittaker, Clark & Daniels, the Volkswagen entities, the Dana entities, Imerys Talc America and Honeywell for lack of specific jurisdiction in Washington.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

MATTHEW HODJERA and SYLVIA HODJERA, Plaintiffs,

v.

BASF CATALYSTS LLC, etal., Defendants.

Case No. C17-48RSL.

May 17, 2017.

United States District Court, W.D. Washington, Seattle.

Matthew Hodjera, Plaintiff, represented by Alexandra B. Caggiano, WEINSTEIN COUTURE PLLC.

Matthew Hodjera, Plaintiff, represented by Benjamin Robert Couture, WEINSTEIN COUTURE PLLC, Brian Weinstein, WEINSTEIN COUTURE PLLC, Charles Stein Siegel, WATERS & KRAUS LLP, pro hac vice & Patrick J. Wigle, WATERS & KRAUS LLP, pro hac vice.

Sylvia Hodjera, Plaintiff, represented by Alexandra B. Caggiano, WEINSTEIN COUTURE PLLC, Benjamin Robert Couture, WEINSTEIN COUTURE PLLC, Brian Weinstein, WEINSTEIN COUTURE PLLC, Charles Stein Siegel, WATERS & KRAUS LLP, pro hac vice & Patrick J. Wigle, WATERS & KRAUS LLP, pro hac vice.

BASF Catalysts, LLC, Defendant, represented by Anthony Todaro, DLA PIPER US LLP.

BorgWarner Morse Tec, Inc, Defendant, represented by Richard D. Ross, SELMAN BRIETMAN LLP.

Charles B. Chrystal Company, Inc., Defendant, represented by Brian Bernard Smith, FOLEY & MANSFIELD & J. Scott Wood, FOLEY & MANSFIELD.

Dana Companies, LLC, Defendant, represented by Diane J. Kero, GORDON THOMAS HONEYWELL.

Dana Canada Corp., Defendant, represented by Diane J. Kero, GORDON THOMAS HONEYWELL.

DAP Products, Inc., Defendant, represented by Peter K. Renstrom, JACKSON JENKINS RENSTROM LLC, pro hac vice, Robert J. Bugatto, JACKSON JENKINS RENSTROM LLC, pro hac vice & Joan L. Roth, JACKSON JENKINS RENSTROM LLP.

Honeywell International Inc., Defendant, represented by Kristine E. Kruger, PERKINS COIE & Mary P. Gaston, PERKINS COIE.

Imerys Talc America, Inc., Defendant, represented by Richard D. Ross, SELMAN BRIETMAN LLP.

Johnson & Johnson, Defendant, represented by Benjamin Walther, SHOOK HARDY & BACON LLP, pro hac vice, Jennifer Gannon Crisera, BENNETT BIGELOW & LEEDOM & William James Leedom, BENNETT BIGELOW & LEEDOM.

Johnson & Johnson Consumer Companies, Inc., Defendant, represented by Benjamin Walther, SHOOK HARDY & BACON LLP, pro hac vice, Jennifer Gannon Crisera, BENNETT BIGELOW & LEEDOM & William James Leedom, BENNETT

BIGELOW & LEEDOM.

Pneumo Abex LLC, Defendant, represented by Diane J. Kero, GORDON THOMAS HONEYWELL.

Union Carbide Corporation, Defendant, represented by Kevin J. Craig, GORDON & REES LLP & Mark B. Tuvim, GORDON & REES.

Vanderbilt Minerals LLC, Defendant, represented by Alice Coles Serko, SEDGWICK LLP, Barry Neal Mesher, SEDGWICK LLP & Rachel Tallon Reynolds, SEDGWICK LLP.

ORDER GRANTING DEFENDANT VOLKSWAGEN AKTIENGESELL SCHAFT'S

MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on defendant Volkswagen Aktiengesellschaft's motion to dismiss for lack of personal jurisdiction. Dkt. # 63. Plaintiffs Matthew and Sylvia Hodjera, a married couple, allege that Mr. Hodjera's mesothelioma was proximately caused by various corporate defendants' manufacture, sale, and/or distribution of asbestos-containing products. Defendant Volkswagen Aktiengesellschaft ("VWAG") moves to dismiss, arguing that this Court lacks personal jurisdiction over it. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court grants the motion for the reasons that follow.[1]

I. BACKGROUND

According to the complaint, Mr. Hodjera was exposed to asbestos or asbestos-containing products in Toronto, Ontario, between 1986 and 1994. Dkt. # 1-1 at 4. On May 20, 2016, Mr. Hodjera was diagnosed with mesothelioma. Id. On December 2, 2016, plaintiffs filed suit in King County Superior Court, alleging that Mr. Hodjera's mesothelioma had been proximately caused by the manufacture, sale, and/or distribution of asbestos-containing products by the following defendants: BASF Catalysts LLC; BorgWarner Morse Tec Inc.; Central Precision Limited; Charles B. Chrystal Company, Inc.; Dana Companies, LLC; Dana Canada Corp.; DAP Products, Inc.; Felt Products Mfg. Co.; Honeywell International Inc.; Imerys Talc America, Inc.; Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Pneumo Abex LLC; Union Carbide Corporation; Vanderbilt Minerals LLC; Volkswagen Aktiengesellschaft; Volkswagen Group of Canada; Volkswagen Group of America, Inc.; Whittaker, Clark & Daniels, Inc.; and Does 1-350, inclusive. Dkt. # 1-1 at 2-3. On January 11, 2017, defendant Volkswagen Group of America, Inc. removed the case. Dkt. # 1. Various motions to dismiss are now pending before the Court.

II. DISCUSSION

VWAG argues that the complaint fails to allege facts supporting personal jurisdiction over it. VWAG is a publically quoted stock corporation organized under the laws of Germany. Dkt. # 64, ¶ 3. Its principal place of business is located in Wolfsburg, Germany. Id., ¶ 5. VWAG designs and manufactures Volkswagen motor vehicles. Id., ¶ 4. VWAG does not conduct business in Washington state: it has no offices, plants, distribution or services centers, or any other facilities here. Id., ¶ 6. VWAG does not have any employees or sales representatives in Washington; it does not own or lease any real property in Washington; it has never had any bank accounts in Washington; and it is neither licensed nor registered to do business here. Id., ¶¶ 8-13. As to VWAG, the complaint alleges that VWAG: has been "engaged in the mining, processing, manufacturing, sale, and distribution of asbestos or asbestos-containing products and machinery requiring or calling for the use of asbestos and asbestos-containing products," Dkt. # 1-1 at 5; and that VWAG "knew or should have known of the specific medical and scientific data, literature and test results relating to the manufacture, as well as to the grinding and drilling, of automobile asbestos containing brake linings and/or clutch friction materials, which first began to be known or knowledgeable to defendants in the 1930's," Dkt. # 1-1 at 11-12. The complaint does not allege that VWAG's products have ever been present in Washington state. See generally Dkt. # 1-1.

Due process requires a district court to have personal jurisdiction over a defendant in order to adjudicate a claim against it. Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014). Plaintiffs have the burden of demonstrating that the Court may exercise personal jurisdiction over VWAG. Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1128-29 (9th Cir. 2003). Absent an evidentiary hearing, plaintiffs need only make, through the submission of pleadings and affidavits, a prima facie showing of facts supporting personal jurisdiction to avoid dismissal. Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir. 2001). Provided the long-arm statute of the state in which the Court sits permits the Court's exercise of personal jurisdiction,[2] there are two ways to establish that the Court has personal jurisdiction over a particular defendant. Id. at 753-55. This order considers each in turn.

A. General Jurisdiction

A defendant is subject to a court's general personal jurisdiction when its contacts are "so constant and pervasive as to render it essentially at home" in the forum. Daimler AG, 134 S. Ct. at 751 (internal quotation and brackets omitted). General

jurisdiction over a party ensures personal jurisdiction over that party for any claim, regardless of that claim's relationship to the forum. Id. at 761. Because VWAG is not incorporated in Washington and does not have its principal place of business in Washington, and because VWAG's other contacts with Washington are not "so `continuous and systematic' as to render it essentially at home" here, the Court agrees that it lacks general personal jurisdiction over VWAG. See Daimler AG, 134 S. Ct. at 760-61 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

B. Specific Jurisdiction

A defendant may also be sued in a forum where it has minimal contacts, provided those contacts are purposefully directed at the forum, the claim arises out of those contacts, and the exercise of jurisdiction over that party is reasonable. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).

Plaintiffs argue that Mr. Hodjera's illness was caused by "exposure to asbestos and asbestos-containing products that were mined, manufactured, produced, and/or placed into the stream of commerce by the defendants in this case." Dkt. # 87 at 3. To establish personal jurisdiction over VWAG, plaintiffs argue that VWAG purposefully availed itself of this Washington forum by selling Volkswagen vehicles in Washington state through Volkswagen Group of America, Inc., a wholly-owned subsidiary. Dkt. # 87 at 8. Plaintiffs attach a plea agreement from a criminal case brought by the United States against VWAG in which VWAG admits to implementing business strategies to target the American market. Dkt. # 88-1 at 58. For purposes of the specific jurisdiction analysis, VWAG does not contest that it "purposefully availed" itself of the Washington forum. Dkt. # 96 at 2.

Still, plaintiffs fail to satisfy the second prong of the specific jurisdiction test: the requirement that their claim arise out of the defendant's purposeful contacts with the forum state. According to the complaint, Mr. Hodjera's asbestos exposure occurred in Toronto, Ontario. Dkt. # 1-1 at 4. There is no allegation that Mr. Hodjera's exposure would not have occurred but for VWAG's contacts with Washington. See Doe v. American Nat. Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997). Instead, plaintiffs allege simply that "the products defendant has sold in Washington are the exact same kind of products with which plaintiff worked, causing his exposure to asbestos." Dkt. # 87 at 10. Mr. Hodjera's history of working with "similar" Volkswagen products in Toronto fails to establish specific jurisdiction over VWGA in Washington.

Instead, plaintiffs argue that the fairness prong of the specific jurisdiction test should be sufficient in this case: "it would be manifestly unfair to this dying plaintiff and his wife to break this case up into multiple claims and require plaintiffs to start over in many different states, and potentially two foreign countries." Dkt. # 87 at 12. While the Court sympathizes with the plaintiffs' circumstances, the Constitution does not permit it to exercise jurisdiction over a particular defendant merely because it would be most fair to the plaintiff. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945) ("[The due process] clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations."). All three prongs of the test must be met to establish specific personal jurisdiction in keeping with due process. Accordingly, plaintiffs' claims against VWGC must be dismissed for lack of personal jurisdiction.

C. Leave to Amend

Plaintiffs alternatively request leave to amend their complaint. Dkt. # 87 at 12 n.6. "[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts," Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). To the extent plaintiffs can, consistent with their Rule 11 obligations, amend their complaint to include allegations remedying the deficiencies identified in this order, they may file a motion to amend and attach a proposed pleading for the Court's consideration by Friday, June 2, 2017.

For all the foregoing reasons, VWAG's motion to dismiss, Dkt. # 63, is GRANTED. Plaintiffs' claims against VWAG are dismissed without prejudice. VWAG's motion for a protective order, Dkt. # 103, VWAG's motion to quash plaintiff's notice of deposition, Dkt. # 124, and VWGC's motion for a protective order regarding plaintiffs' second set of requests, Dkt. # 132, are DENIED as moot.

[1] The Court concludes that this matter is suitable for resolution without oral argument. Accordingly, VWAG's request for argument, Dkt. ## 63, 96, and plaintiffs' request for argument, Dkt. # 87, are denied.

[2] 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).

Sources

• The opinion on Google Scholar
• Washington asbestos laws
• Washington asbestos exposure sites