Hodjera v. BASF Catalysts LLC (W.D. Wash., May 17, 2017, dismissal, as to Whittaker, Clark & Daniels)

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, alleging his mesothelioma, diagnosed in May 2016, was caused by their asbestos-containing products. The complaint said he was exposed in Toronto, Ontario, between 1986 and 1994. The case began in King County, Washington, and was removed to federal court in Seattle. One defendant, Whittaker, Clark & Daniels (WCD), moved to dismiss for lack of personal jurisdiction. WCD is a New Jersey corporation based in Connecticut, with no property, offices, employees or agents in Washington. The plaintiffs argued that WCD sold talc to Johnson & Johnson for nationwide distribution in cosmetic products. The court found no general jurisdiction, which the plaintiffs did not dispute. On specific jurisdiction, it assumed WCD's sales to Johnson & Johnson were enough to place its product in interstate commerce. It still found that the claim did not arise from WCD's contacts with Washington, because the exposure happened in Toronto. The court dismissed the claims against WCD 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 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.

What the court held. Specific personal jurisdiction requires that the claim arise out of the defendant's purposeful contacts with the forum; exposure occurring in Toronto with no allegation of a but-for link to the defendant's Washington contacts does not establish specific jurisdiction in Washington.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Matthew Hodjera: mesothelioma

Who	Work	Where	When	Products
Matthew Hodjera	; lived nearby	Toronto	1986-1994
Matthew Hodjera		Toronto	1986-1994	talc and vermiculite, Shower to Shower, talc sold by Whittaker, Clark & Daniels to Johnson & Johnson

The defendants

• Whittaker, Clark & Daniels, Inc. (supplier)
• Johnson & Johnson (manufacturer)
• BASF Catalysts LLC (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 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 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 WHITTAKER, CLARK & DANIELS, INC.'S

MOTION TO DISMISS

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on defendant Whittaker, Clark & Daniels, Inc.'s motion to dismiss. Dkt. ## 17, 18, 29.[1] 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 Whittaker, Clark & Daniels, Inc. ("WCD") moves to dismiss, arguing that this Court lacks personal jurisdiction over it. WCD further argues that the complaint fails to include any factual allegations regarding WCD and thus fails to state a claim against it. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court grants the motion for the reasons that follow.[2]

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

WCD argues that the complaint fails to allege facts supporting either personal jurisdiction over WCD or a plausible claim for relief against WCD. Because the Court finds that it lacks personal jurisdiction over plaintiffs' claims against WCD, it does not reach the question whether plaintiffs have successfully pled those claims.

WCD is a New Jersey corporation with its principal place of business in Stamford, Connecticut. Dkt. # 19-2, ¶ 3. WCD ceased all active business operations in February 2004 and currently exists to manage assets and liabilities. Id., ¶ 4. WCD has no real property, offices, employees, or registered agents in Washington state. Id., ¶¶ 5-8. The complaint contains no allegations regarding WCD: no mention of WCD's product, no discussion of Mr. Hodjera's contact with that product, no allegation that WCD's products were present in Toronto between 1986 and 1994. Indeed, after listing WCD as a defendant in the caption, the complaint does not mention WCD at all. 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 WCD. 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,[3] 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. WCD argues that it has no contacts with Washington state, let alone contacts "so constant and

pervasive as to render it essentially at home" here. Plaintiffs do not dispute this point. The Court lacks general jurisdiction over WCD.

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 use of cosmetic products containing talc that WCD had sold. Dkt. # 51 at 2. To establish personal jurisdiction over WCD, plaintiffs argue that WCD purposefully availed itself of this Washington forum by selling talc to Johnson & Johnson for nationwide distribution in cosmetic products. Dkt. # 51 at 2. Plaintiffs attach a portion of deposition testimony explaining that WCD built a talc plant, called Metropolitan Talc, with the goal of supplying customers with talc produced by that plant. Dkt. # 52-3 at 9. Plaintiffs also attach a 1970 letter from the president of Metropolitan Talc to the president of WCD, informing him that Johnson & Johnson was interested in ordering talc for use in its "Shower to Shower" product. Dkt. # 52-4 at 2.

Even assuming that this attenuated connection is sufficient to show that WCD placed its products in the stream of interstate commerce, see Worldwide Volkswagen v. Woodson, 44 U.S. 286, 297 (1980), 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 WCD's contacts with Washington. See Doe v. American Nat. Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997). Accordingly, Mr. Hodjera's use of talc products in Toronto fails to establish specific jurisdiction over WCD in Washington, regardless of whether WCD sold the talc used in those products.

Plaintiffs' claims against WCD must be dismissed for lack of personal jurisdiction.

C. Leave to Amend

Plaintiffs alternatively request leave to amend. Dkt. # 51 at 12. "[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, WCD's motion to dismiss, Dkt. # 29, is GRANTED. WCD's unsigned motions to dismiss, Dkt. ## 17, 18, are STRICKEN. Plaintiffs' claims against WCD are dismissed without prejudice.

[1] Defendant Whittaker, Clark & Daniels, Inc. appears to have filed the same motion to dismiss three times: twice on January 18, 2017, Dkt. ## 17, 18, then again the next day, Dkt. # 29. Because the first two filings lack a valid signature as required by Fed. R. Civ. P. 11(a), see Dkt. # 17 at 8; Dkt. # 18 at 8, the Court hereby STRIKES those filings and treats Dkt. # 29 as the operative motion. [2] The Court concludes that this matter is suitable for resolution without oral argument. Accordingly, plaintiffs' request for argument, Dkt. # 51, is denied.

[3] 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