Hodjera v. BASF Catalysts LLC (W.D. Wash., May 17, 2017, dismissal, as to Volkswagen Group of America)

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, state court. They alleged that his mesothelioma, diagnosed in May 2016, was caused by asbestos-containing products the companies made, sold or distributed. According to the complaint, he was exposed in Toronto, Ontario, between 1986 and 1994. The plaintiffs argued that part of the exposure came from working with asbestos-containing brakes and clutches on Volkswagen vehicles in Canada. Volkswagen Group of America removed the case to federal court and moved to dismiss for lack of personal jurisdiction. The court found no general jurisdiction, because the company was incorporated in New Jersey, had its main office in Virginia, and had limited Washington contacts. It also found no specific jurisdiction. The claim did not arise from the company's Washington contacts, since the exposure happened in Toronto, and selling similar products in Washington was not enough. The court 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: Motion to dismiss
• State: Washington

Outcome. 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.

What the court held. Specific personal jurisdiction requires that the claim arise out of the defendant's contacts with the forum; selling similar products in Washington did not suffice where the plaintiff's exposure occurred in Toronto. General jurisdiction was lacking because the defendant was not at home in Washington.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Matthew Hodjera: mesothelioma

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

The defendants

• Volkswagen Group of America, Inc. (supplier)
• BASF Catalysts LLC (manufacturer)
• BorgWarner Morse Tec 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 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 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 OF AMERICA,

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 of America, Inc.'s motion to dismiss for lack of personal jurisdiction. Dkt. # 54. 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 of America, Inc. ("VWGA") 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

VWGA argues that the complaint fails to allege facts supporting personal jurisdiction over it. VWGA is a New Jersey corporation with its principal place of business in Herndon, Virginia. Dkt. # 56, ¶ 6. Since 1955, VWGA has been the sole authorized importer of Volkswagen vehicles and replacement parts into the United States. Id., ¶ 7. Though VWGA is registered to do business in Washington and has appointed a registered agent here, VWGA does not have facilities, real property, offices, or employees in Washington. Id., ¶¶ 8-9. VWGA's net sales in Washington in 2016 were approximately 2.27% of VWGA's nationwide net sales for that year. Id., ¶ 10. The complaint's only allegations specific to VWGA are that VWGA "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 VWGA "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 VWGA's products 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 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 VWGA. 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. VWGA argues that its limited contacts in Washington state are not "so constant and pervasive as to render it essentially at home" here. Because VWGA is not incorporated in Washington and does not have its principal place of business in Washington, and because VWGA'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 VWGA. 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. # 80 at 2. To establish personal jurisdiction over VWGA, plaintiffs argue that VWGA purposefully availed itself of this Washington forum by selling Volkswagen vehicles in Washington state. Dkt. # 80 at 8. Plaintiffs attach a print-out from Volkswagen's "US Media Site," listing VWGA sales for January 2017. Dkt. # 80-2 at 2-4. For purposes of the specific jurisdiction analysis, VWGA does not contest that it "purposefully availed" itself of the Washington forum. Dkt. # 81 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 VWGA'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. # 80 at 10. Mr. Hodjera's history of working with "similar" Volkswagen products in Toronto fails to establish specific jurisdiction over VWGA in Washington.

Accordingly, plaintiffs' claims against VWGA must be dismissed for lack of personal jurisdiction.

C. Leave to Amend

Plaintiffs alternatively request leave to amend. Dkt. # 80 at 12 n.4. "[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, VWGA's motion to dismiss, Dkt. # 54, is GRANTED. Plaintiffs' claims against VWGA are dismissed without prejudice. VWGA's motion for a protective order, Dkt. # 93, and VWGA's motion to quash plaintiff's notice of deposition, Dkt. # 125, are DENIED as moot.

[1] The Court concludes that this matter is suitable for resolution without oral argument. Accordingly, VWGA's request for argument, Dkt. ## 54, 81, and plaintiffs' request for argument, Dkt. # 80, 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