Hodjera v. BASF Catalysts LLC (W.D. Wash., July 31, 2017, dismissal, as to Imerys Talc America)

Our plain-English summary of Hodjera v. BASF Catalysts LLC (U.S. District Court, Western District of Washington, July 31, 2017).

Matthew Hodjera and his wife Sylvia sued a number of companies, alleging that his mesothelioma, diagnosed in May 2016, was caused by asbestos-containing products the companies made, sold or distributed. The complaint says he was exposed in Toronto, Ontario, between 1986 and 1994. The case was filed in King County, Washington, and removed to federal court. Imerys Talc America Inc., a Delaware company based in California, asked to be dismissed for lack of personal jurisdiction. The court agreed that it was not subject to general jurisdiction in Washington because it was not incorporated or headquartered there. On specific jurisdiction, the plaintiffs pointed to Imerys's predecessor mining talc later used in Johnson & Johnson's Shower-to-Shower product, and to Imerys's Washington business license. The court held the claim did not arise out of Imerys's Washington contacts, because the exposure occurred in Toronto and similar products sold in Washington did not tie the claim to the forum. It dismissed the claims against Imerys with prejudice, denied leave to amend, and declined to award attorney's fees.

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: July 31, 2017
• Docket: Case No. C17-48RSL
• Stage: Motion to dismiss
• State: Washington

Outcome. 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.

What the court held. Specific personal jurisdiction requires that the claim arise out of the defendant's purposeful contacts with the forum; exposure in Toronto to similar products does not create specific jurisdiction in Washington over a talc supplier.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Matthew Hodjera: mesothelioma

• Sylvia Hodjera

Who	Work	Where	When	Products
Matthew Hodjera		Toronto	1986-1994

The defendants

• Imerys Talc America Inc. (supplier)
• Johnson & Johnson (manufacturer)
• Whittaker, Clark & Daniels, Inc. (supplier)

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 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 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.

July 31, 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 & Michael J. Madderra, SELMAN BRIETMAN LLP.

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 & Todd M. Thacker, JACKSON JENKINS RENSTROM 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 & 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 IMERYS TALC AMERICA INC.'S MOTION TO

DISMISS FOR LACK OF PERSONAL JURISDICTION

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on defendant Imerys Talc America Inc.'s motion to dismiss for lack of personal jurisdiction. Dkt. # 159. 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 Imerys Talc America Inc. ("Imerys Talc") 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 defendants have moved to dismiss for lack of personal jurisdiction.

II. DISCUSSION

Imerys Talc argues that the complaint fails to allege facts supporting personal jurisdiction over it. Imerys Talc is a Delaware corporation with its principal place of business in California. Dkt. # 160, ¶ 5. Imerys Talc does not mine talc or any other minerals in Washington. Id., ¶ 10. It does not have facilities, real property, offices, or employees in Washington. Id., ¶¶ 6-9. The complaint's only allegations specific to Imerys Talc are that it "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 9-10, that it "fail[ed] to warn of the health hazards of exposure to asbestos," Dkt. # 1-1 at 10, 11, and that it "made misrepresentations regarding the safety of asbestos to the asbestos-product manufacturers," Dkt. # 1-1 at 10. The complaint does not allege that Imerys Talc'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 Imerys Talc. 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 Imerys Talc is not incorporated in Washington and does not have its principal place of business in Washington, the Court agrees that it lacks general personal jurisdiction over Imerys Talc. 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 his 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. #

165 at 3. To establish personal jurisdiction over Imerys Talc, plaintiffs allege that Charles Mathieu, Inc., Imerys Talc's predecessor-in-interest, purposefully availed itself of this Washington forum by mining and processing talc, which was distributed by former defendant Whittaker, Clark & Daniels to defendant Johnson & Johnson for use in its "Shower-to-Shower" cosmetic talc product, which in turn was "intended for widespread distribution throughout North America." Dkt. # 165 at 8. Plaintiffs further allege that Imerys Talc is licensed to do business in Washington state. Dkt. # 165 at 8. Plaintiffs attach depositions and a print-out from the Washington Secretary of State's website supporting these allegations. Dkt. # 166-1.

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" Imerys Talc's contacts with Washington. See Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007). Instead, plaintiffs allege simply that "the products defendant has sold in Washington include the same kind of products with which plaintiff worked, causing his exposure to asbestos." Dkt. # 165 at 10. Mr. Hodjera's history of working with "similar" products in Toronto fails to establish specific jurisdiction over Imerys Talc in Washington.

Accordingly, plaintiffs' claims against Imerys Talc must be dismissed for lack of personal jurisdiction. C. Leave to Amend

Plaintiffs alternatively request leave to amend. Dkt. # 165 at 12-13. "[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). On June 2, 2017, plaintiffs moved for leave to file an amended complaint. Dkt. # 164. The Court denied that motion on July 31, 2017, finding that plaintiffs' proposed amended complaint failed to cure the jurisdictional deficiencies in the original complaint. Because it appears that plaintiffs' pleading as to Imerys Talc could not be cured by the allegation of other facts, the Court declines plaintiffs' request for another opportunity to amend their complaint.

D. Attorney's Fees

In its discretion, the Court declines Imerys Talc's request for attorney's fees under RCW 4.28.185.

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

[1] 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.

[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