North v. Adam Opel AG. (2015)

Our plain-English summary of North v. Adam Opel AG. (New York Supreme Court, September 15, 2015).

Larry North and his wife Claudia sued several defendants in Albany County, New York, claiming that his malignant mesothelioma, diagnosed in June 2014, resulted from exposure to asbestos-containing products. For this motion, the claimed exposure came from work on automobiles. This included brake work on a 1972 Opel GT that he bought used around 1980. Adam Opel AG, a German vehicle maker, moved to dismiss for lack of personal jurisdiction. The plaintiffs appeared to concede that there was no general jurisdiction, and argued that New York's long-arm statute gave specific jurisdiction and that more discovery was needed. The court held that the plaintiffs' submissions, which included a General Motors annual report, magazine articles and advertisements, were speculative and did not show that further discovery would uncover facts supporting jurisdiction. It also noted that North could not identify who made the brakes he removed, and that the replacement brakes were not made by Opel. The court granted the motion and dismissed the complaint against Opel.

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: New York Supreme Court, Albany
• Decided: September 15, 2015
• Citation: 2015 NY Slip Op 32794(U)
• Docket: Docket No. AOI228/2014
• Stage: Motion to dismiss
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted German automaker Adam Opel AG's motion to dismiss the complaint of Larry and Claudia North for lack of personal jurisdiction, denying the plaintiffs' request for further jurisdictional discovery.

What the court held. Plaintiffs asserting long-arm jurisdiction under CPLR 302 must make a sufficient start showing that facts may exist supporting jurisdiction to obtain further discovery; speculative submissions that do not tie the defendant to New York do not meet that standard.

Issues decided: Personal Jurisdiction, Trial Procedure and Discovery.

The people and their exposure

• Larry North: pleural mesothelioma

The defendants

• Adam Opel AG (manufacturer)

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.

2015 NY Slip Op 32794(U)

LARRY NORTH and CLAUDIA NORTH, Plaintiffs,

v.

ADAM OPEL AG. etal., Defendants.

Docket No. AOI228/2014.

September 15, 2015.

Supreme Court, Albany County.

DECISION AND ORDER

RICHARD T. AULISI, Judge.

The plaintiffs commenced the within action to recover damages for personal injuries allegedly incurred by Larry North, resulting from his exposure to various asbestos containing products. The plaintiffs commenced this action on December 10, 2014, by filing a summons and complaint in the Albany County Clerk's Office. Issue was subsequently joined and discovery has been conducted pursuant to an expedited schedule. This matter is currently scheduled for trial commencing October 6, 2015.

The defendant, Adam Opel AG (Opel), has made a motion to dismiss the plaintiffs' complaint, pursuant to CPLR §3211, for lack of personal jurisdiction. The defendant seeks to dismiss the motion on the theory that this Court has neither general nor specific personal jurisdiction over it because it has no principal place of business in New York State and the plaintiffs' complaint is devoid of any allegations of Opel engaging in any in-state activity. Subsequently, the plaintiffs opposed the defendant's motion on the basis that further discovery is necessary on the issue of personal jurisdiction. The plaintiff, Larry North, was diagnosed with malignant mesothelioma in June of 2014. He alleges that he has developed mesothelioma as a result of his exposure to various asbestos containing materials. For the purpose of the within motion to dismiss, he alleges his exposure occurred because of his work on various automobiles. The plaintiff provided a list of vehicles at his deposition that he recalled working on. Of the 19 vehicles listed, plaintiff avers that he owned a 1972 Opel GT which he acquired used from a private sale in or about 1980. Plaintiff alleges that he was exposed to asbestos containing materials from the 1972 Opel GT because of the brake work he performed on it.

Defendant is a foreign corporation located in Germany that manufactures vehicles. For the purposes of its general personal jurisdiction argument, the defendant relies on Daimler AG v Bauman (134 S.Ct. 746 [2014]), alleging that a corporation is only subject to general jurisdiction when it is incorporated in or has a principal place of business in the forum state, or is deemed to be otherwise "at home" in that state. Defendant submitted an affidavit and a supplemental affidavit from Joerg Bienzelser, who is Senior Counsel of Product Development & Engineering at Opel in its legal department. In his affidavits, Mr. Bienzelser avers that the defendant has never been incorporated or had a principal place of business in New York. Plaintiffs, in their opposition papers, appear to concede that this Court does not have general personal jurisdiction over the defendant. Conversely, the plaintiffs argue that specific personal jurisdiction can be established pursuant to New York State's long-arm statute (see CPLR 302).

Although the defendant avers that in 1972 a total of 12,805 units of the Opel GT were wholesaled to General Motors Corporation (GM), a United States company, it maintains that it had no further involvement beyond the sale. Defendant did not have any control over where the units were sold. Furthermore, the defendant does not have any information, within its current records, regarding where the units were shipped[1]. Nevertheless, the defendant argues that the plaintiffs need to, but will be unable to, demonstrate a substantial nexus between the alleged acts of the defendant and New York State. Defendant contends that Mr. North cannot recall from whom he purchased the vehicle and where the purchase occurred. Moreover, the defendant alleges that the plaintiffs have failed to present any evidence of where the vehicle was manufactured and how it got to New York. In his affidavits. Mr. Bienzelser avers that defendant has never owned, operated or controlled dealerships in New York or the United States of America; does not have (or had) any authorized or franchised

dealerships in New York; does not conduct any operations in New York and was not involved in any way in the marketing of Opel GTs in the United States or in the production or distribution of any marketing materials. Additionally, the defendant argues that due process requires that it be sued in New York based on its affiliation with the state and it should not be "haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts" (Burger King Corp. v Rudzewicz, 471 US 462, 472 [1985][internal quotation marks omitted]).

Pursuant to CPLR § 302(a)(3)(ii), a court may exercise personal jurisdiction over a non-domiciliary who "commits a tortious act without the state causing injury to [a] person. . . within the state. . . if [the non-domiciliary] expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce." Since the plaintiffs are seeking to assert personal jurisdiction, they bear the burden of showing it (see Urifrer v SB Builders, LLC, 95 AD3d 1616 [3d Dept 2012]). The plaintiffs, however, are not required to make a prima facie showing of personal jurisdiction, but only need to demonstrate that they have made a sufficient start to warrant further discovery (see Gottlieb v Merrigan, 119 AD3d 1054 [3d Dept 2014]). Thus, if the plaintiffs can show that unavailable facts may exist giving the Court jurisdiction over the defendant and that their pleadings do not advance a frivolous position against the defendant, they may defeat the instant motion to dismiss (see Dine-A-Mate v J.B. Noble's Rest., 240 AD2d 802, 804 [3d Dept 1997]). When considering the papers, the plaintiffs have "not established that additional discovery would disclose facts `essential to justify opposition'" (Bouley v Bouley, 19 AD3d 1049, 1051 [4th Dept] quoting CPLR § 3211[d]). As support, plaintiffs submitted, among other documentation, General Motors Corporation's 2014 10-K, magazine articles published in the United States about Opel vehicles, marketing materials with "Opel" written on them and "Opel" advertisements.[2] Said papers fail to provide "any reasonable explanation as to why the facts essential to justify opposition to dismissal of [the complaint] could not be stated" (Atlas Feather Corp. v Pine Top Ins. Co., 128 AD2d 578 [2d Dept 1987]). Moreover, the plaintiffs' arguments are speculative; therefore, the Court is not obligated to permit further discovery on the issue of personal jurisdiction (see Klein v Jamor Purveyors, 108 AD2d 344 [2d Dept 1985]). Based on the foregoing, the Court determines that the evidence proffered by the plaintiffs does not warrant a sufficient start to necessitate further discovery (see Gottlieb v Merrigan, 119 AD3d 1054 [3d Dept 2014]).

The Court also notes that extensive discovery has been conducted on the merits. In his deposition testimony, Mr. North could not identify the manufacturer of the brakes that he removed from the 1972 Opel GT automobile and with respect to the new brakes that Mr. North put on the car, these brakes were not manufactured by the defendant, Opel. Thus, Mr. North was unable to identify any asbestos component (brakes) of the defendant that he may have removed from the 1972 Opel GT. The plaintiffs are relying upon circumstantial evidence in assuming that the brake materials were the original equipment on the vehicle, where the record reveals that Mr. North purchased the car when it was eight years old and had 25,000 miles on it.

Accordingly, the defendant's motion to dismiss the plaintiffs' complaint for lack of personal jurisdiction is granted, without costs.

This writing constitutes a Decision of the Court.

[1] Upon review of the papers, it appears more probable than not that the wholesale units were sent to the state of Michigan. [2] The Court notes that the Opel corporation referenced in the plaintiffs' submissions may be a separate corporation from the defendant Adam Opel AG. On its face, the plaintiffs' submissions do not specifically identify defendant as the branch of "Opel" indicated or that the defendant had any involvement in the production of said materials.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites