Varney v. Air & Liquid Systems Corporation (W.D. Wash., Apr. 24, 2018)

Our plain-English summary of Varney v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, April 24, 2018).

Donald Varney and his wife Maria sued many companies in federal court in Washington. The complaint alleged that Donald developed mesothelioma from asbestos in brakes, clutches, gaskets and grinders. It said he was exposed while working as a marine machinist, instrument mechanic and auto mechanic at the Puget Sound Naval Shipyard and the Hunters Point Naval Shipyard between 1957 and 1972. It also alleged exposure during personal auto repair from 1939 to 1957 and secondary exposure from his father, an auto mechanic. Maria claimed loss of consortium. One defendant, California corporation Fryer-Knowles, Inc., moved to dismiss for lack of personal jurisdiction. It showed it was not incorporated until August 1973, after the last alleged exposure. The plaintiffs did not respond. The court found no evidence of general or specific jurisdiction, since a company that did not yet exist could not have put products into commerce in Washington. It granted the motion and dismissed the claims against Fryer-Knowles.

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: April 24, 2018
• Docket: Case No. 3:18-cv-05105-RJB
• Stage: Motion to dismiss
• State: Washington

Outcome. The court granted Fryer-Knowles, Inc.'s motion to dismiss for lack of personal jurisdiction and dismissed the plaintiffs' claims against it, because the company was not incorporated until after the plaintiff's last alleged exposure and the plaintiffs did not respond.

What the court held. A court lacks general or specific personal jurisdiction over a nonresident defendant that did not exist, and so could not place products in the forum's stream of commerce, during the period of the plaintiff's alleged exposure.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Donald Varney: mesothelioma

Who	Work	Where	When	Products
Donald Varney	marine machinist, mechanical instrument mechanic (shipyards and maritime work)	Puget Sound Naval Shipyard, Bremerton, Washington	1957-1972	brakes, clutches and friction materials, gaskets and packing
Donald Varney	marine machinist, mechanical instrument mechanic (shipyards and maritime work)	Hunters Point Naval Shipyard, San Francisco, California	1957-1972	brakes, clutches and friction materials, gaskets and packing
Donald Varney	personal auto repair		1939-1957	brakes, clutches and friction materials
Donald Varney	son of an auto mechanic; dust brought home	Seattle, Washington	1940s-1950s

The defendants

• Fryer-Knowles, Inc.

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Varney v. Air & Liquid Systems Corporation (March 28, 2018). The court denied the motions of Taco, Inc. and Aurora Pump Company to dismiss for failure to state a claim, personal jurisdiction and standing, and to strike the prejudgment interest request, so the Varneys won at this stage. The jurisdiction, standing and interest rulings were without prejudice.

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.

DONALD VARNEY and MARIA VARNEY, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Case No. 3:18-cv-05105-RJB.

April 24, 2018.

United States District Court, W.D. Washington, Tacoma.

Donald Varney & Maria Varney, Husband and Wife, Plaintiffs, represented by Benjamin Robert Couture, WEINSTEIN COUTURE PLLC, Brian Weinstein, WEINSTEIN COUTURE PLLC, Benjamin H. Adams, DEAN OMAR & BRANHAM, LLP,

pro hac vice & Lisa W. Shirley, DEAN OMAR BRANHAM, LLP, pro hac vice.

Air & Liquid Systems Corporation, individually and as & Velan Valve Corporation, Defendants, represented by Kevin J. Craig, GORDON REES SCULLY MANSUKHANI LLP, Mark B. Tuvim, GORDON REES SCULLY MANSUKHANI LLP &

Trevor J. Mohr, GORDON REES SCULLY MANSUKHANI LLP.

Alfa Laval Inc, BW/IP Inc., and its wholly owned subsidiaries & Superior-Lidgerwood-Mundy Corporation, successor in interest M.T. Davidson, Defendants, represented by Christine E. Dinsdale, SOHA & LANG PS.

Armstrong International Inc., Defendant, represented by Bennett J. Hansen, PREG O'DONNELL & GILLETT, PLLC, David E. Chawes, PREG O'DONNELL & GILLETT, PLLC & William E. Fitzharris, Jr., PREG O'DONNELL & GILLETT, PLLC. Aurora Pump Company, Defendant, represented by Jeanne F. Loftis, BULLIVANT HOUSER BAILEY PC.

Blackmer Pump Company, Defendant, represented by Claude Bosworth, RIZZO MATTINGLY BOSWORTH PC.

BNS Co., formerly known as Brown & Sharpe Manufacturing Company, Defendant, represented by Delian P. Deltchev, LEWIS BRISBOIS BISGAARD & SMITH LLP & Michael Anthony Jaeger, LEWIS BRISBOIS BISGAARD & SMITH LLP.

Carrier Corporation & Parker-Hannifin Corporation, Defendants, represented by Nicole R. MacKenzie, WILLIAMS KASTNER & GIBBS & Ryan W. Vollans, WILLIAMS KASTNER & GIBBS.

Crane Co. & Crane Environmental Inc, individually and as successor in interest Cochrane Corporation, Defendants, represented by G. William Shaw, K&L GATES LLP & Ryan J. Groshong, K&L GATES LLP.

Crosby Valve, LLC, Elliott Turbomachinery Co Inc, also known as Elliott Company, The Goodyear Tire & Rubber Company, Goulds Pumps LLC, formerly known as Goulds Pumps, Inc., Grinnell LLC, doing business as Grinnell Corporation & ITT LLC, formerly known as ITT Corporation formerly known as ITT Industries Inc formerly known as ITT Fluid Products Corp formerly known as Hoffman Specialty MFG Corp formerly known as Bell and Gossett Company formerly known as ITT Marlow, Defendants, represented by Ronald C. Gardner, GARDNER TRABOLSI & ASSOC. PLLC.

Crown Cork & Seal Company Inc., successor in interest, Defendant, represented by Alice Coles Serko, TANENBAUM KEALE LLP, Barry Neal Mesher & Christopher S. Marks, TANENBAUM KEALE LLP.

Darigold, Inc, Defendant, represented by John Ray Nelson, FOSTER PEPPER PLLC.

Flowserve Corporation, Defendant, represented by Marc Marshall Carlton, LEWIS BRISBOIS BISGAARD & SMITH LLP & Randy J. Aliment, LEWIS BRISBOIS BISGAARD & SMITH LLP.

FMC Corporation & Sterling Fluid Systems (USA) LLC, formerly known as Peerless Pumps Co., Defendants, represented by Katherine M. Steele, BULLIVANT HOUSER BAILEY & Michael Mackenzie Brown, BULLIVANT HOUSER BAILEY.

Foster Wheeler Energy Corporation, General Electric Company & The Gorman-Rupp Company, Defendants, represented by Alice Coles Serko, TANENBAUM KEALE LLP & Christopher S. Marks, TANENBAUM KEALE LLP.

Hopeman Brothers Inc, Defendant, represented by Diane Catherine Babbitt, FOLEY & MANSFIELD, James D. Hicks, FOLEY & MANSFIELD & Melissa K. Roeder, FOLEY & MANSFIELD.

IMO Industries, Inc, individually and as, Defendant, represented by James Edward Horne, GORDON THOMAS HONEYWELL & Michael Edward Ricketts, GORDON THOMAS HONEYWELL.

The Nash Engineering Company & Weir Valves & Controls USA, Inc., individually and as successor in interest Atwood & Morrill Co., Inc., Defendants, represented by Dana C. Kopij, WILLIAMS KASTNER & GIBBS.

SB Decking Inc, Defendant, represented by John Michael Mattingly, RIZZO MATTINGLY BOSWORTH PC.

Taco, Inc., Defendant, represented by Jeanne F. Loftis, BULLIVANT HOUSER BAILEY PC & Megan Uhle, BULLIVANT HOUSER BAILEY PC.

Uniroyal Holding Inc, formerly known as United States Rubber Company Inc, Defendant, represented by Chris Robert Youtz, SIRIANNI YOUTZ SPOONEMORE HAMBURGER.

Viking Pump, Inc., Defendant, represented by Todd M. Thacker, JACKSON JENKINS RENSTROM LLP.

Warren Pumps, LLC, Defendant, represented by Allen Eraut, RIZZO MATTINGLY BOSWORTH PC.

The Wm. Powell Company, Defendant, represented by James D. Hicks, FOLEY & MANSFIELD, Brian Bernard Smith, FOLEY & MANSFIELD & R. Dirk Bernhardt, FOLEY & MANSFIELD.

ORDER ON DEFENDANT FRYER-KNOWLES, INC.'S MOTION TO DISMISS

ROBERT J. BRYAN, District Judge.

This case comes before the Court on the Motion of Defendant Fryer-Knowles, Inc. (a California Corporation) to Dismiss pursuant to Rule 12 (b)(2). Dkt. 123. The Court has considered the pleadings filed regarding the motion and the file herein. The Court deems oral argument unnecessary.

BACKGROUND

A. The Complaint.

The Complaint alleges that Defendants manufactured, distributed, "and/or" sold asbestoscontaining brakes, clutches, gaskets, and grinders (Dkt. 1-2 at 3) and further alleges as follows: Plaintiff Donald Varney developed mesothelioma, an asbestos-caused condition, from ambient exposure from Defendants' products while working as a marine machinist, mechanical instrument mechanic, and auto mechanic. Id. at 5. Plaintiff D. Varney was exposed to asbestos from Defendants' products at the Puget Sound Naval Shipyard in Bremerton, Washington, and the Hunters Point Naval Shipyard in San Francisco, California, between 1957 and 1972. Id. at 5. He was also exposed to asbestos from Defendants' products during personal auto repair from 1939 to 1957, and he had secondary exposure from his father, an auto mechanic in Seattle, Washington, during the 1940's and 1950's. Id. at 5. Plaintiff D. Varney has sustained economic and non-economic harm from his mesothelioma condition, while his wife, Plaintiff Maria Varney, has sustained a loss of consortium. Id. at 6. Plaintiffs seek, inter alia, general and special damages, costs, and prejudgment interest. Id.

B. Defendant's motion.

Defendant Fryer-Knowles, Inc., a California corporation, seeks dismissal for lack of personal jurisdiction under Fed. R. Civ. P. 12 (b)(2). Plaintiff did not respond to the motion.

DISCUSSION

Fed. R. Civ. P. 12 (b)(2) governs the dismissal of an action based on lack of personal jurisdiction. Where no applicable federal statute addresses the issue, a court's personal jurisdiction analysis begins with the "long-arm" statute of the state in which the court sits. Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir.2002). Washington's long-arm statute extends the court's personal jurisdiction to the broadest reach that the United States Constitution permits. Byron Nelson Co. v. Orchard Management Corp., 95 Wn.App. 462, 465 (1999). Because Washington's long-arm jurisdictional statute is coextensive with federal due process requirements, the jurisdictional analysis under state law and federal due process are the same. Schwarzenegger, 374 F.3d 797, 800-01 (9th Cir.2004).

To exercise personal jurisdiction over a nonresident defendant under federal law, that defendant must have at least "minimum contacts" with the relevant forum state such that exercising jurisdiction "does not offend traditional notions of fair play and substantial justice." Schwarzenegger, 374 F.3d at 801, (citing International Shoe v. Washington, 326 U.S. 310, 316 (1945). In determining whether a defendant had minimum contacts, courts focus on the relationship among the defendant, the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186 (1977). Personal jurisdiction exists in two forms, general and specific. Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002).

"A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so `continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 15, 919 (2011). In order for a court to exercise specific jurisdiction over a foreign defendant corporation, the following is required: (1) the defendant purposefully availed itself of the privilege of conducting activities in Washington, thereby invoking the benefits and protections of its laws; (2) the plaintiff's claims arise out of defendant's Washington-related activities; and (3) the exercise of jurisdiction would be reasonable. Easter v. American West Financial, 381 F.3d 948, 960-61 (9th Cir.2004); Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir.2000). Plaintiff has the burden to make the prima facie showing of jurisdiction. Ziegler, 64 F.3d 470, 473 (9th Cir.1995).

Defendant Fryer-Knowles, Inc., as a non-resident defendant, argues that Plaintiff is unable to show this court has either general or specific jurisdiction over it for the relevant time period. It argues Plaintiff cannot show it had "certain minimum contacts" with Washington during the relevant period because it was incorporated in 1973, the year after Plaintiff's last asserted exposure in 1972. Accordingly, it maintains Plaintiff cannot show it had the "minimum contacts" required under International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) for this Court to have personal jurisdiction over it. Defendant Fryer-Knowles, Inc.'s motion to dismiss (Dkt. 123) should be granted. There is no evidence this Court has general jurisdiction over this non-resident defendant. Its affiliations with Washington were not so "continuous and systematic" during the time in question so "as to render [it] essentially at home" in Washington. Moreover, there is no evidence this Court has specific jurisdiction over it. The uncontroverted evidence in the record is that this Defendant was not incorporated until August 29, 1973. Dkt. 124, at 3 and 7-8. It could not place any product into the stream of commerce before that time (the time period Plaintiff alleges he was injured) because it did not exist. Id., at 3. Plaintiff does not contest this evidence or respond to the motion. This Court does not have personal jurisdiction over Defendant Fryer-Knowles, Inc., and the case against it should be dismissed.

Therefore, it is HEREBY ORDERED that:

• The Motion of Defendant Fryer-Knowles, Inc. (a California Corporation) to Dismiss pursuant to Rule 12 (b) (2) (Dkt. 123) IS GRANTED; and

• The claims against Defendant Fryer-Knowles, Inc. ARE DISMISSED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.

Sources

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