Leech v. 3M Company (E.D. La., Mar. 23, 2018)

Our plain-English summary of Leech v. 3M Company (U.S. District Court, Eastern District of Louisiana, March 23, 2018).

The family of William Leech sued several companies in Louisiana state court after he died of mesothelioma in January 2016. They allege he was a construction engineer exposed to asbestos at many sites from about 1965 to 1992, including the Morton Salt facility in Weeks Island, Louisiana. The case was removed to federal court. Rohm and Haas Chemicals LLC, named as a premises defendant and successor to Morton International, moved to dismiss for lack of personal jurisdiction or, alternatively, for a more definite statement. Plaintiffs conceded there was no general jurisdiction and argued for specific jurisdiction, asking for jurisdictional discovery. The court found the complaint did not say which Rohm and Haas entity was the proper party or allege specific contacts with Louisiana. It noted that if Rohm and Haas controlled the Weeks Island facility, specific jurisdiction would likely exist. It denied the motion without prejudice, allowed 30 days of jurisdictional discovery, and allowed 60 days to amend the complaint.

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, Eastern District of Louisiana
• Decided: March 23, 2018
• Docket: Civil Action No. 17-446
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court denied Rohm and Haas Chemicals LLC's Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction without prejudice, giving plaintiffs 30 days for jurisdictional discovery and 60 days to amend their complaint.

What the court held. When a Rule 12(b)(2) motion raises factual questions about jurisdiction and the requested discovery could add significant facts, the court may allow jurisdictional discovery instead of dismissing at once.

Issues decided: Personal Jurisdiction, Premises Owner Liability, Trial Procedure and Discovery.

The people and their exposure

• William Leech: mesothelioma; died

Who	Work	Where	When	Products
William Leech	construction engineer (construction)	Morton Salt facility in Weeks Island, Louisiana, Weeks Island, Louisiana	1965-1992

The defendants

• Rohm and Haas Chemicals LLC (premises owner)
• Morton Salt, Inc. (premises owner)
• Dow Chemical Company

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.

LEECH, etal.,

v.

3M COMPANY, etal., SECTION: "G"(4).

Civil Action No. 17-446.

March 23, 2018.

United States District Court, E.D. Louisiana.

Margaret A. Leech, individually and on behalf of Decedent, William Leech, Thomas Leech, individually and on behalf of Decedent, William Leech & Sarah Leech, individually and on behalf of Decedent, William Leech, Plaintiffs, represented by Lindsey A. Cheek & Rubiante Lolana Brown, Cheek Law Firm, LLC.

Air & Liquid Systems Corporation, Successor by Merger to Buffalo Pumps, Inc., Defendant, represented by Stacey Leigh Strain, Hubbard, Mitchell, Williams & Strain, PLLC.

Anco Insulations Inc, Defendant, represented by Margaret M. Joffe, Pugh, Accardo, LLC, Douglas R. Elliott, Pugh, Accardo, LLC & Jamie Hebert Baglio, Pugh, Accardo, LLC.

Calaveras Asbestos Ltd., Defendant, represented by Kay Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Cosmich Simmons & Brown, PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

CBS Corporation, Successor by Merger to CBS, Corp a Pennsylvania Corp. & General Electric Company, Defendants, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C. Certainteed Corporation, Defendant, represented by Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP, Jennifer E. Adams, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch Kerrigan LLP.

Foster Wheeler LLC, as Survivor to the Merger with Foster Wheeler Corporation, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C. Georgia Pacific LLC, Defendant, represented by Gayla M. Moncla, Kean Miller, Alexandra E. Rossi, Kean Miller, Allison N. Benoit, Kean Miller, Barrye Panepinto Miyagi, Taylor, Porter, Brooks & Phillips LLP, Gregory M. Anding, Kean Miller, Jay Morton Jalenak, Jr., Kean Miller, Robert E. Dille, Maron Marvel Bradley & Anderson, LLC & Sarah W. Anderson, Kean Miller. Goulds Pumps LLC, formerly known as & Grinnell LLC, Defendants, represented by Lauren Ann McCulloch, Morgan, Lewis & Bockius.

Hajoca Corp, Defendant, represented by Kay Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Cosmich Simmons & Brown, PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

Honeywell International, Inc., as successor in interest to AlliedSignal, Inc., as successor in interest to Bendix Corporation, Defendant, represented by Eric Shuman, McGlinchey Stafford, PLLC & Sarah Elizabeth McMillan, McGlinchey Stafford, PLLC.

IMO Industries Inc., Defendant, represented by Leigh Ann Tschirn Schell, Adams & Reese, LLP, Joseph Henry Hart, IV, Pugh, Accardo, LLC & Thomas A. Porteous, Pugh, Accardo, LLC.

Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale.

Union Carbide Corporation, Defendant, represented by McGready Lewis Richeson, Pugh, Accardo, Haas, Radecker & Carey, Francis Xavier deBlanc, III, Pugh, Accardo, Haas, Radecker & Carey & Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey.

Morton Salt, Inc., Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery Davis, Liskow & Lewis.

Metropolitan Life Insurance Company, Defendant, represented by Jay Morton Jalenak, Jr., Kean Miller & Patrick Dale Roquemore, Kean Miller.

Dow Chemical Company, individually and as Successor to Morton International, Inc, Defendant, represented by David Mark Bienvenu, Jr., Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Anthony Joseph Lascaro, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Colin Patrick O'Rourke, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Erin Percy Tadie, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, John Allain Viator, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Katie Dampier Chabert, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC & Lexi T. Holinga, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC.

McCarty Corporation, Defendant, represented by Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP. Rohm and Haas Chemicals LLC, incorrectly sued as Rohm & Haas, Individually and as Successor to Morton International, Inc., Defendant, represented by Tyson B. Shofstahl, Adams & Reese, LLP.

ORDER

NANNETTE JOLIVETTE BROWN, District Judge.

Pending before the Court is Defendant "Rohm and Haas Chemicals LLC's Motion for Dismissal Pursuant to Rule 12(b)(2), Alternatively Motion for More Definite Statement Pursuant to Rule 12(e)."[1] Having reviewed the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will deny without prejudice the motion and grant Plaintiffs 30 days to conduct jurisdictional discovery. Moreover, Plaintiffs are granted 60 days to file an amended complaint, if appropriate.

In this litigation, Plaintiffs Leech and her adult children (collectively, "Plaintiffs") allege that Decedent William Leech ("Plaintiff-Decedent") was diagnosed with malignant mesothelioma on January 11, 2016, and that asbestos-related mesothelioma was a cause of William Leech's death on January 14, 2016.[2] According to Plaintiffs, Decedent was a construction engineer who worked with and was exposed to asbestos at numerous sites in Louisiana, California, Arizona, Virginia, and other states from approximately 1965 through 1992, including the Morton Salt facility in Weeks Island, Louisiana.[3] Plaintiffs bring survival and wrongful death claims against various defendants, including "Rohm & Haas," individually and as successor to Morton International, Inc.[4]

Plaintiffs originally filed the petition in this matter on January 10, 2017, in the Civil District Court for the Parish of Orleans, State of Louisiana.[5] On January 19, 2017, Defendant Honeywell International, Inc. removed the action to this Court.[6] On March 14, 2017, Defendant Rohm and Haas Chemicals LLC ("Defendant ROH") filed the instant motion.[7] On March 21, 2017, Plaintiffs filed an opposition to Defendant ROH's motion.[8] On March 29, 2017, with leave of the Court, Defendant ROH filed a reply to Plaintiff's opposition.[9]

Defendant ROH moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, and, in the alternative, for a more definite statement pursuant to Rule 12(e).[10] Defendant ROH first asserts that Plaintiffs have failed to establish that general jurisdiction exists over Plaintiffs in Louisiana.[11] Moreover, Defendant ROH asserts that Plaintiffs have failed to establish specific jurisdiction over Defendant ROH in Louisiana, as Plaintiffs have not alleged any facts regarding Defendant ROH's contacts with Louisiana.[12] Alternatively, Defendant ROH argues that Plaintiffs must

provide a more definite statement, since Defendant ROH alleges that Plaintiffs do not identify Defendant ROH as a party in Plaintiffs' petition.[13] Finally, Defendant ROH asserts that Plaintiffs fail to identify sufficient facts to set forth their fraud claims with factual particularity.[14]

Plaintiffs first concede that they are not asserting that general jurisdiction exists over Defendant ROH in Louisiana, but are asserting that specific jurisdiction exists over Defendant ROH.[15] Plaintiffs then contend that Defendant ROH, along with Defendants Morton Salt and Dow Chemical, purposefully directed activities at the Weeks Island facility in Louisiana for many years.[16] Plaintiffs also assert that Defendant ROH's motion is premature, and Plaintiffs should have the opportunity to conduct jurisdictional discovery to determine which of the entities "currently retains liability related to the Weeks Island facility."[17]

The Fifth Circuit has articulated a three-step personal jurisdiction inquiry: "(1) whether the defendant. . . purposely directed its activities toward the forum state or purposely availed itself of the privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable."[18]

Moreover, when opposing a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), "[t]he plaintiff bears the burden of establishing jurisdiction, but need only present prima facie evidence."[19] In deciding the motion, the Court may consider "affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery."[20] In this inquiry, the Court accepts as true the plaintiff's uncontroverted allegations, and resolves in the plaintiff's favor "all conflicts between the facts contained in the parties' affidavits and other documentation."[21] Additionally, as the Fifth Circuit has explained, discovery "on matters of personal jurisdiction. . . need not be permitted unless the motion to dismiss raises issues of fact."[22] If the proposed jurisdictional discovery "could not have added any significant facts," the Fifth Circuit will affirm a denial of the plaintiff's request to conduct such discovery.[23] However, when the motion to dismiss challenges the factual bases for jurisdiction, "the court may receive interrogatories, depositions, or `any combination of the recognized methods of discovery' to help it resolve the jurisdictional issue."[24] The court considering the Rule 12(b)(2) motion "has discretion as to the type and amount of discovery to allow."[25] Here, Plaintiffs have not even specified which "Rohm & Haas" entity is the proper party in this action.[26] In fact, Plaintiffs only specifically mention "Rohm & Haas" one time in the complaint, listing "Rohm & Haas, individually and as successor to Morton International, Inc." as a "premises defendant." Although Plaintiffs make allegations against the "premises defendants" collectively, they have not alleged any specific contacts between Defendant ROH and Louisiana.[27] However, Plaintiffs also contend that discovery is necessary to determine "whether [Defendant] ROH Louisiana facilities exposed the [Plaintiff-Decedent] to asbestos-containing materials," and which entity "currently retains the liability related to the Weeks Island facility for the claims brought in this matter."[28] If Defendant ROH maintains control over the Weeks Island facility, then there would likely be specific jurisdiction in this case. Thus, the Court cannot find that the jurisdictional discovery that Plaintiffs have requested "could not [add] any significant facts" necessary to resolve the jurisdictional inquiry.[29] Accordingly,

IT IS HEREBY ORDERED that Defendant "Rohm and Haas Chemicals LLC's Motion for Dismissal Pursuant to Rule 12(b) (2), Alternatively Motion for More Definite Statement Pursuant to Rule 12(e)" is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs are granted 30 days to conduct jurisdictional discovery.

IT IS FURTHER ORDERED that Plaintiffs are granted 60 days to file an amended complaint to address the deficiencies raised above, if appropriate.

[1] Rec. Doc. 82.

[2] See Rec. Doc. 42-1 at 1.

[3] Id. at 2.

[4] Rec. Doc. 1-1 at 3. Plaintiffs identify Rohm & Haas as a "Premises Defendant."

[5] Rec. Doc. 1-1.

[6] Rec. Doc. 1.

[7] Rec. Doc. 82.

[8] Rec. Doc. 87.

[9] Rec. Doc. 90.

[10] Rec. Doc. 82.

[11] Rec. Doc. 82-1 at 5.

[12] Id. at 10.

[13] Id.

[14] Id.

[15] Rec. Doc. 87 at 9-10.

[16] Id. at 11.

[17] Id. at 15.

[18] Luv N' care, Ltd. V. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006).

[19] Revell v. Lidov, 317 F.3d 467, 4609 (5th Cir. 2002) (citations omitted).

[20] Id.

[21] Id.

[22] Id. at 283 (citation omitted).

[23] Id.

[24] Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008) (quoting Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)).

[25] Id.

[26] Rec. Doc. 1-1 at

[27] Since the Court finds that it is unclear whether personal jurisdiction exists over Defendant ROH, it is unnecessary to examine the particularity of Plaintiffs' fraud claims at this time.

[28] Id. at 12.

[29] See Revell, 317 F.3d 467

Sources

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