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

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 many companies in Washington state court, saying his mesothelioma, diagnosed in May 2016, was caused by asbestos-containing products. The complaint said he was exposed in Toronto, Ontario, between 1986 and 1994. The plaintiffs argued that part of the exposure came from his work with asbestos-containing brakes and clutches on Volkswagen vehicles in Canada. The case was removed to federal court in Seattle. Volkswagen Group Canada, a Canadian distributor of Volkswagen vehicles and parts with no offices, employees, property or registration in Washington, moved to dismiss for lack of personal jurisdiction. The court found no general jurisdiction because the company was not at home in Washington. It found no specific jurisdiction because the plaintiffs did not allege that the Ontario exposure arose from the company's Washington contacts or that it had purposefully availed itself of Washington. The plaintiffs argued it would be unfair to split the case among several states. The court said fairness alone cannot supply jurisdiction. It dismissed the claims against the company without prejudice and allowed the plaintiffs to 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 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.

What the court held. Due process requires that a plaintiff's claim arise out of the defendant's purposeful contacts with the forum state. A foreign defendant with no Washington contacts is not subject to specific jurisdiction merely because it would be fairer to the plaintiff to litigate all claims in one place.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Matthew Hodjera: mesothelioma

Who	Work	Where	When	Products
Matthew Hodjera	work with brakes and clutches on Volkswagen vehicles	Toronto	1986-1994	brakes, clutches and friction materials, asbestos-containing brakes and clutches on Volkswagen vehicles

The defendants

• Volkswagen Group Canada, Inc. (supplier)
• BASF Catalysts LLC (manufacturer)
• BorgWarner Morse Tec Inc. (manufacturer)
• Dana Companies, LLC (manufacturer)
• Honeywell International Inc. (manufacturer)
• Johnson & Johnson (manufacturer)
• Union Carbide Corporation (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 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.
• 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 GROUP CANADA, INC.'S

MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on defendant Volkswagen Group Canada, Inc.'s motion to dismiss for lack of personal jurisdiction. Dkt. # 75. 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 Group Canada, Inc. ("VWGC") 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

VWGC argues that the complaint fails to allege facts supporting personal jurisdiction over it. VWGC is a Canadian corporation with its principal place of business in Ajax, Ontario. Dkt. # 77, ¶¶ 3, 5. VWGC is the authorized exclusive distributor of new Volkswagen motor vehicles and parts for sale in the Canadian market. Id., ¶ 4. VWGC does not conduct business in Washington state: it has no offices, plants, distribution or services centers, or any other facilities here. Id., ¶ 6. VWGC 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. The complaint's only allegations specific to VWGC are that VWGC "sold, distributed, and supplied asbestos and asbestos-containing products, which plaintiff came in contact with and utilized, and asbestos which plaintiff inhaled, causing his injuries and illnesses," Dkt. # 1-1 at 10, and that VWGC "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 VWGC'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 VWGC. 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 VWGC is not incorporated in Washington and does not have its principal place of business in Washington — indeed, because VWGC appears to have no contacts with Washington whatsoever — the Court agrees that it lacks general personal jurisdiction over VWGC. 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 in part by his work with "asbestoscontaining brakes and clutches, on Volkswagen vehicles in Canada." Dkt. # 89 at 2. Plaintiffs argue that they 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 — because Mr. Hodjera's asbestos exposure occurred in Toronto, Ontario, where VWGC conducted business. Dkt. # 1-1 at 4. But plaintiffs have not alleged that Mr. Hodjera's exposure in Ontario would not have occurred but for VWGC's contacts with Washington, as is required for this Court to exercise personal jurisdiction over VWGC. See Doe v. American Nat. Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997).

Moreover, plaintiffs have failed to argue that VWGC purposefully availed itself of this Washington forum by selling Volkswagen products in Washington state or otherwise. See generally Dkt. # 89. 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." Dkt. # 89 at 11. 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

Though plaintiffs have not requested leave to amend, "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, VWGC's motion to dismiss, Dkt. # 75, is GRANTED. Plaintiffs' claims against VWGC are dismissed without prejudice. VWGC's motion for a protective order, Dkt. # 101, VWGC's motion to quash plaintiff's notice of deposition, Dkt. # 123, and VWGC's motion for a protective order regarding plaintiffs' second set of requests, Dkt. # 130, are DENIED as moot.

[1] The Court concludes that this matter is suitable for resolution without oral argument. Accordingly, VWGC's request for argument, Dkt. ## 75, 95, and plaintiffs' request for argument, Dkt. # 89, 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