Hodjera v. BASF Catalysts LLC (W.D. Wash., July 31, 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, July 31, 2017).

Matthew Hodjera and his wife Sylvia sued a number of companies in Washington state court after he was diagnosed with mesothelioma in May 2016. The complaint said he was exposed to asbestos-containing products in Toronto, Ontario, between 1986 and 1994. The case was removed to federal court in Seattle. The court had earlier dismissed several defendants without prejudice because the complaint did not allege enough facts to support specific jurisdiction in Washington. It allowed the plaintiffs to try to fix this by amending. The proposed amended complaint added detail about Mr. Hodjera's work in an automotive repair department in Ontario in the summer of 1986, including vehicles and parts said to contain asbestos. The court held that it still did not cure the problem. The plaintiffs did not allege that the exposure would not have happened but for the defendants' contacts with Washington. The court denied leave to amend as futile and dismissed the claims against the eight named defendants with prejudice.

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 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.

What the court held. A proposed amendment is futile if it does not remedy jurisdictional deficiencies. Specific jurisdiction requires that the claim arise out of the defendant's forum contacts, and the plaintiffs alleged no but-for link between the defendants' Washington contacts and the exposure in Canada.

Issues decided: Personal Jurisdiction, Trial Procedure and Discovery.

The people and their exposure

• Matthew Hodjera: mesothelioma

The defendants

• Whittaker, Clark & Daniels, Inc.
• Volkswagen Group of America, Inc. (manufacturer)
• Volkswagen Aktiengesellschaft (manufacturer)
• Volkswagen Group of Canada (manufacturer)
• Dana Companies, LLC (manufacturer)
• Dana Canada Corp. (manufacturer)
• Imerys Talc America Inc. (supplier)
• Honeywell International Inc. (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 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.

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 DENYING PLAINTIFFS' MOTION FOR LEAVE TO AMEND

COMPLAINT

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on plaintiffs' motion for leave to amend their complaint. Dkt. # 164. The Court previously dismissed without prejudice the plaintiffs' claims against defendants Whittaker, Clark & Daniels, Inc., Volkswagen Group of America, Inc., Volkswagen Aktiengesellschaft, Volkswagen Group of Canada, Dana Companies, LLC, Dana Canada Corp., Imerys Talc America Inc., and Honeywell International Inc., but indicated that if plaintiffs were able to remedy the deficiencies identified, they were free to move to amend their complaint by Friday, June 2, 2017. Dkt. ## 153, 155, 156, 157,

162, 163. This motion follows. Having reviewed the memoranda of the parties and the remainder of the record, the Court denies plaintiffs' motion for the reasons that follow.[1]

According to the original 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. As noted above, the Court granted various motions to dismiss on the grounds that plaintiffs' original complaint lacked sufficient factual allegations to establish specific jurisdiction in Washington. Dkt. ## 153, 155, 156, 157, 162, 163.

Courts "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). There is a "strong policy in favor of allowing amendment" after "considering four factors: bad faith, undue delay, prejudice to the opposing party, and the futility of amendment." Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). The underlying purpose of Rule 15 is "to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). However, if the proposed amendment would be futile (i.e., it would be immediately subject to dismissal if challenged under Rule 12(b)(6)), there is no reason to put defendants through the unnecessary expense and delay of responding to the amendment. Nordyke v. King, 644 F.3d 776, 787 n.12 (9th Cir. 2011).

Plaintiffs' proposed amended complaint substantially elaborates on the claims raised in their original complaint. See Dkt. # 164-1. The proposed amended complaint now contains detailed factual allegations about Mr. Hodjera's work in an automotive repair department in Ontario, Canada during the summer of 1986, including allegations that Mr. Hodjera worked with vehicles and parts containing asbestos that were manufactured and/or distributed by various defendants. Dkt. # 164-1 at 7-11.

Plaintiffs' proposed amended complaint does not, however, remedy the jurisdictional deficiencies identified in the Court's earlier orders. As in their original complaint, plaintiffs argue that specific jurisdiction in Washington exists over various corporate defendants whose products exposed Mr. Hodjera to asbestos in Canada. Accordingly, plaintiffs still fail to satisfy the second prong of the specific jurisdiction test: the requirement that their claims arise out of the defendant's purposeful contacts with the forum state. There is no allegation that Mr. Hodjera's asbestos exposure would not have occurred but for the defendants' contacts with Washington. See Doe v. American Nat. Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997). Because plaintiffs' proposed amended complaint fails to remedy the previously identified jurisdictional deficiencies in their original complaint, amendment of plaintiffs' complaint to reinitiate suit against the dismissed defendants — Whittaker, Clark & Daniels, Inc.; Volkswagen Group of America, Inc.; Volkswagen Aktiengesellschaft; Volkswagen Group of Canada; Dana Companies, LLC; Dana Canada Corp.; Imerys Talc America Inc.; and Honeywell International Inc. — would be futile. See Nordyke, 644 F.3d at 787 n.12. The claims against those defendants, which were previously dismissed without prejudice, are hereby dismissed with prejudice.

For the foregoing reasons, plaintiffs' motion for leave to amend their complaint (Dkt. # 164) is DENIED. [1] The Court concludes that this matter is suitable for resolution without oral argument. Accordingly, defendants' requests for argument, Dkt. ## 170, 171, 172, are denied.

Sources

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