On January 10, 2017 a
Motion-Secondary
was filed
involving a dispute between
Stacey Lynn Brown As Administratrix Of The Estate Of Steven L. Hall, Deceased,
and
Ace Hardware,
Ace Hardware Corporation,
Air & Liquid Systems Corporation, As Successor By Merger To Buffalo Pumps, Inc.,
Alfa Laval, Inc.,
Allegheny Teledyne Incorporated, Individually And As Successor To Allegheny Technologies Incorporated And Farris Valves And Or Sprague Pumps,
Amec Construction Management, Inc.,
American Biltrite, Inc., Individually And Successor To Amtico Floors,
Amtrol, Inc., Individually And As Successor To Thrush Products, Inc.,
A.O. Smith Water Products,
Armstrong International, Inc.,
Atwood & Morrill Co., Inc. D B A Weir Valves & Controls Usa Inc.,
Auburn Technology, Inc. F K A Alco Power, Inc.,
Aurora Pump Company,
Bechtel Corporation,
Blackmer Pump,
Borgwarner Morse Tec Llc,
Bw Ip International Co., Formerly Known As Borg Warner Industrial Products Inc., A Former Subsidiary Of And Successor To Borg Warner Corp. And Byron Jackson Pumps,
Carrier Corporation,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Clark-Reliance Corporation, Individually And As Successor To Jerguson,
Cleaver-Brooks Company F K A Aqua-Chem, Inc.,
Courter & Company, Inc.,
Crane Co., Individually And As Successor To Cochrane,
Croll-Reynolds Engineering Company, Inc.,
Crosby Valve And Gage Company,
Crosby Valve, Inc.,
Cytec Engineered Materials, Inc. F K A Fiberite Corporation And A K A Ici Composites, Inc.,
Cytec Industries Inc., Individually And As Successor To American Cyanamid Company,
Dap, Inc. K N A La Mirada Products Co., Inc.,
Dean Pump Division,
Dezurik, Inc.,
Durez Corporation,
Duro Dyne Corporation,
E.I. Team, Inc. F K A J.L. Murphy, Inc.,
Electrolux Home Products, Inc., Individually And As Successor To Tappan And Copes-Vulcan,
Elliott Turbomachinery Co., Inc.,
Fairbanks Company,
Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation, Individually And As Successor To Northern Pump Company, Coffin And Peerless Pump Company,
Foster Wheeler, Llc,
Gardner Denver, Inc.,
General Electric Company,
Genuine Partscompany,
George A. Fuller Company,
Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company,
Gg Of Florida, Inc., F K A Higbee, Inc.,
Goodall Rubber Co.,
Goulds Pumps, Inc.,
Greene, Tweed & Co., Llp, Individually And As Successor To Palmetto Packings,
Grinnell Corporation,
Henry Technologies, Inc.,
Hexion Specialty Chemicals, Inc. F K A Borden Chemical, Inc.,
Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp.,
Howden Buffalo, Inc., Individually And As Successor-In-Interest To Fb Sturtevant, The Howden Buffalo Group And Buffalo Fan,
Imo Industries, Inc. F K A Delaval, Inc., Individually And As Successor To Turbine Equipment Company,
I.T.T. Industries, Inc., Individually And As Successor To Bell & Gossett,
I.T.T. Industries, Inc., Individually And As Successor To Hoffman Specialty, Bell & Gossett, And Foster Engineering,
Jenkins Bros.,
John Crane, Inc.,
Kaiser Gypsum Company, Inc.,
Koppers Company, Inc.,
Koppers Industries, Inc.,
Lighttolier Incorporated,
Maremont Corporation, Individually And As Successor To Grizzly,
Metropolitan Life Insurance Co.,
Morse Diesel, Inc.,
Morse Diesel International, Inc.,
Napa Auto Parts A K A National Automotive Parts Association,
Nash Engineering Company,
Northrop Grumman Corporation, Individually And As Successor To George A. Fuller Company,
Occidental Chemical Corporation, Individually And As Successor To Durez Corporation,
Owens-Illinois, Inc.,
Patterson Pump Company, A Subsidiary Of The Gorman-Rupp Company And Individually And As Successor To C.H. Wheeler Manufacturing And Griscom Russell,
Plastics Engineering Company, Individually And As Successor To Plenco,
Pneumo Abex Corporation,
Pneumo-Abex Llc, Individually And As Successor To Abex Corporation, A Delaware Corporation,
Progress Lighting, Inc.,
Research-Cottrell, Inc. N K A Awt Air Company, Inc.,
Riley Power, Inc. F K A Babcock Borsig Power, Inc. And F K A Riley Stoker Corporation D B A Db Riley, Inc.,
Rogers Corporation,
R.T Vanderbilt Company, Inc., Individually And As Successor To International Tale Co., International Pulp Co., And Governeur Tale Co., Inc.,
Sid Harvey Industries, Inc.,
Sid Harvey Supply, Inc.,
Spence Engineering Company, Inc.,
Spirax Sarco, Inc.,
Spx Cooling Technologies, Inc., Individually As Successor To Marley Cooling Technologies And Marley Cooling Towers,
Superior Lidgerwood Mundy Corp., A K A Lidgerwood Manufacturing Co., Individually And As Successor To M.T. Davidson Co.,
Thomas O'Connor & Company, Inc., Currently Known As O'Connor Constructors, Inc.,
Thrush Co., Inc.,
Treadwell Corporation,
Turner Construction Company,
Tuthill Corporation, Individually And As Successor To Kinney Vacuum Pump Company, Kinney Pump Company And Murray Turbine,
Tyco Flow Control, Inc., Individually And As Successor To Keystone And Grinnell Corporation,
Tyco International,
Union Carbide Corporation,
Union Pumps, As A Textron Company,
United Conveyor Corporation,
Velan Valve Corp.,
Warren Pumps, Llc, Individually And As Successor To The Quimby Pump Company,
William Powell Company,
Wolff & Munier, Inc.,
York International Corporation, Individually And As Successor To Frick Company,
Yuba Heat Transfer, A Division Of Connell Limited Partnership N K A Spx Heat Transfer Llc,
Zurn Industries, Inc. A K A And Successor-In-Interest To Erie City Iron Works,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017
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SUPREME COURT OF THE STATE OF NEW YORK
FIRST JUDICIAL DISTRICT
In Re: First Judicial District
Asbestos Litigation
This Document Applies to:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STACEY LYNN BROWN, as Administratrix of the
Estate of STEVEN L. HALL, deceased,
Plaintiff, Index No.: 190012/2017
vs.
GENUINE PARTS COMPANY,
NATIONAL AUTOMOTIVE
PARTS ASSOCIATION, et al.,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS, GENUINE PARTS COMPANY AND NATIONAL AUTOMOTIVE
PARTS ASSOCIATION'S, MOTION TO DISMISS
BARCLAY DAMON LLP
Attorneys for Defendants
Genuine Parts Company and National
Automotive Parts Association
The Avant - Suite 1200
Building
200 Delaware Avenue
Buffalo, New York 14202-2150
Telephone: (716) 856-5500
Peter S. Marlette, Esq.
Of Counsel
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PRELIMINARY ST_ATEMENT
Defendants, Genuine Parts Company (hereinafter "GPC") and National Automotive Parts
Association (hereinafter "NAPA") submit this Memorandum of Law in support of their motion
to dismiss the Complaint based on lack of personal jurisdiction, along with the affirmation of
Peter S. Marlette, Esq. dated October 4, 2018 ("Marlette Affidavit"), and the exhibits attached
thereto, including the affidavit of GPC and NAPA representatives, Mark Hohe, sworn to
September 7, 2018 ("Hohe Affidavit") and Gaylord Spencer, sworn to August 3, 2018 ("Gaylord
Affidavit"), attached to the Marlette Affidavit as Exhibit H and Exhibit I,respectively. Please
note that all further references to exhibits refer to the exhibits attached to the Marlette Affidavit.
As fully set forth herein, GPC and NAPA's motion should be granted because this Court lacks
personal jurisdiction over these defendants in this case.
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STATEMENT OF FACTS
The facts in support of this motion are fully set forth in the accompanying affidavit of
Peter S. Marlette, Esq. sworn to on September 11, 2018. Briefly, plaintiff alleges that Mr. Hall
contracted mesothelioma as a result of his alleged exposure to asbestos and asbestos-containing
products attributable to numerous defendâñts. See, Marlette Affidavit, Exhibit A. As it relates
to GPC and NAPA, the products that Mr. Hall associates with these defêñdañts are brake
products that he used during automotive work at his personal residences in the State of Kansas
and during work for various gas stations in the State of Kansas. See, Exhibit E. Any brake job
that may have been performed with a NAPA brake was done in Kansas during a time when Mr.
Hall was a resident of the State of Kansas. See, Exhibit E. Plaintiff's mesothelioma diagnosis
was made in Kansas and plaintiff received all of his medical treatment in either Kansas or Texas.
See, Exhibit E.
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ARGUMENT
I. GPC AND NAPA ARE NOT SUBJECT TO THE JURISDICTION OF NEW YORK
COURTS AND THIS CASE SHOULD THEREFORE BE DISMISSED AGAINST
THESE DEFENDANTS
Initially, in order to maintain a claim against GPC and NAPA in this jurisdiction, plaintiff
must establish that the Court has jurisdiction over these defendants in this action. See, Stewart v.
Volkswagen of America, 81 N.Y.2d 203, 207 (1993); Lamarr v. Klein, 315 N.Y.S.2d 695, 697
(1970). Specifically, plaintiff must establish that (i) New York law confers jurisdiction over both
GPC and NAPA, and (ii)the exercise of jurisdiction over these defendants comports with the
Due Process Clause of the United States Constitution, which requires that any exercise of
justice."
jurisdiction be consistent with "traditional notions of fair play and substantial Brown v.
Lockheed Martin Corp., 814 F.3d 619, 625 (2d Cir. 2016), citing International Shoe Co.
v.Washington, 326 U.S. 310, 316 (1945); Sonera Holding B.V v Cukurova Holding A.S., 750
F.3d 221, 224 (2d Cir. 2014). "Although a plaintiff is not required to plead and prove
jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests
plaintiff."
upon the Pichardo v. Zayas, 122 A.D.3d 699, 700-701 (2d Dept. 2014).
In this case, plaintiff cannot satisfy this burden because her claims agairst GPC and
NAPA have nothing to do with the State of New York. Mr. Hall resided in Kansas for his entire
life except for a short period of time before his death when he stayed with his daughter in Texas.
See, Exhibits D and E. GPC is a Georgia corporation with its corporate headquarters and
principal place of business in Georgia. See, Exhibit H. NAPA is a Michigan Corporation with
its principal place of business in Georgia. See, Exhibit I. Further, plaintiff's claims against
NAPA and GPC arise from work performed with automotive brakes purchased and utilized in
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the State of Kansas. See, Exhibit E. Furthermore, any brakes attributable to NAPA and GPC
purchased in Kansas were not manufactured nor remanufactured in New York. See Exhibit H.
On these facts, New York law does not confer jurisdiction over GPC or NAPA. Even if
New York law conferred jurisdiction over these defendants in this case, exercising jurisdiction
over GPC and NAPA would violate its due process rights guaranteed by the U.S. Constitution
and impermissibly burden interstate commerce in violation of the United States Constitution's
Fourteenth Amendment.
A. NEITHER GPC NOR NAPA ARE SUBJECT TO GENERAL JURISDICTION
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
In New York, general jurisdiction is set forth under CPLR §301, which states that, "[a]
court may exercise such jurisdiction over persons, property, or status as might have been
heretofore." all-
exercised Although it was long understood to permit the exercise of general,
"present"
purpose, jurisdiction over foreign entities that were deemed in New York by virtue of
their continuous business activity here, this is no longer the case pursuant to a series of recent
decisions issued by the U.S. Supreme Court in 2011, 2014 and 2017.
Specifically, the U.S. Supreme Court eradicatal such wide-reachiñg general jurisdiction
in Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011), and
Daimler v. Baumañ, 134 S. Ct. 746, 761-62 (2014). In Daimler, the Court held that, absent
circumstances,"
"exceptional the Due Process Clause of the Fourteenth Amendment precludes a
state from exercising general jurisdiction over foreign corporations that are ñêither incorporated
in,nor have their principal places of business in, that state. 134 S. Ct. at 761. For a corporation,
jurisdiction"
the "paradigm forum for the exercise of general is where the corporation "is fairly
home,"
regarded as at Goodyear, 131 S. Ct. 2853-54, which is the corporation's place of
incorporation and principal place of business. See,Daimler, 134 S. Ct. at 760-61.
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In January 2017, the Supreme Court reaffirmed Daimler in BNSF Railway Co. v. Tyrrell,
Employers'
137 S. Ct. 810 (2017). The Tyrrell case involved consolidated Federal Liability Act
(FELA) actions filed in Montana state court by nonresidents against a railroad that did business
in Montana but was incorporated and had its principal place of business elsewhere. The Court
reversed a Montana Supreme Court opinion finding that the railroad's extensive contacts with
business" within"
Montana meant that it was "doing and "found the state, such that general
jurisdiction could be exercised. The U.S. Supreme Court specifically rejected the Montana high
court's focus on the scale of the railroad's business in the state. The Court held that the railroad's
in-state business did "not suffice to permit the assertion of general jurisdiction over claims . . .
Montana."
that are unrelated to any activity occurring in
New York courts, interpreting Daimler, have determined the place of
organization/principal place of business binary is the only grounds sufficient to give rise to
general jurisdiction. See, D & R Glob. Selections, S.L. v. Pineiro, 128 A.D.3d 486, 487 (1st
Dept. 2015), leave to appeal granted, 26 N.Y.3d 914 (2015) (holding that "[a]s a defendant
neither is incorporated in New York State nor has itsprincipal place of business here, New York
courts may not exercise jurisdiction over [the defendant] under CPLR 301.").
A case that is exactly on-point that arose from the New York City Asbestos Litigation
(NYCAL) is Trumbull v. Adience, Inc. (Matter of New York City Asbestos Litig.), 2017 N.Y.
Misc. LEXIS 839, *1, 2017 NY Slip Op 30459(U), 1 (N.Y. Sup. Ct. Mar. 6, 2017), which was
decided on March 6, 2017 by Justice Peter H. Moulton, J.S.C. In Trumbull, plaintiff was
allegedly exposed to asbestos in Missouri and commenced suit in New York City against a
Delaware corporation with its principal place of business in Massãehüsetts. The court
emphasized, and plaintiff conceded, that "defêñdãnt is not subject to general jurisdiction based
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home"
on Daimler, as itcannot be considered "at in New York since it is neither incorporated
nor maintains itsprincipal place of business within the state.
Thus, under the Supreme Court's binding interpretation of the Due Process Clause, New
York courts may not exercise general jurisdiction pursüäut to CPLR 301 over a defendant that is
neither incorporated in New York State nor has its principal place of business here. See, D & R
Glob. Selections, S.L. v. Pineiro, 128 A.D.3d 486, 487 (1st Dept. 2015), leave to appeal granted,
26 N.Y.3d 914, 44 N.E.3d 937 (2015); see also, Davis v. Scottish Re Grp. Ltd., 46 Misc. 3d
1206(A), 9 N.Y.S.3d 592 (Sup. Ct. New York County 2014) (explaining "[a]s a matter of due
process, in order for a corporation to be añ1eñable to general (allpurpose) personal jurisdiction,
suit must be brought in either the place of incorporation or principal place of business of the
company"); Brown, 814 F.3d at 630 (holding that although Lockheed Martin had a physical
presence in,and employed dozens of workers in, Connecticut for years, derived substantial
many
revenue from Connecticut-based operations, and is registered to do business in Connecticut,
exercise of general jurisdiction over Lockheed Martin in Coññêcticut would violate Due Process
clause); Gucci America v. Weixing Li, 768 F.3d 122, 134-37 (2d Cir. 2014) (Chinese bank with
principal place of business in China and brañehes and cmployees in New York not subject to the
general jurisdiction of New York courts).
As set forth in the affidavit of its representative, Mark Hohe, GPC is incorporated in
Georgia with a principal place of business in Georgia. See, Exhibit H, at paragraphs 6-7. In
addition, as set forth in the affidavit of its representative, Gaylord Spencer, NAPA is
incorporated in Michigan and has its principal place of business in Georgia. See, Exhibit I,at
home,"
paragraphs 4-5. Thus, neither defendant is "at as defined by the Sugozuo Court, in New
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York. Accordingly, as neither GPC nor NAPA are "at in New York, these defêñdañts are
not subject to general jurisdiction in the State of New York.
B. GPC AND NAPA ARE NOT SUBJECT TO SPECIFIC JURISDICTION UNDER
THE FOURTEENTH AMENDMENT PURSUANT TO THE RECENT U.S. SUPREME
COURT DECISION IN BRISTOL-MYERS SOUIBB CO. V. SUPERIOR COURT OF
CAL1FORNIA.
CPLR §302(a), which is New York's long-arm statue, addresses specific jurisdiction over
a non-domiciliary for claims that arise out of: (1) business activity in New York; (2) a tortious
act committed in New York; (3) a tortious act committed outside New York that causes injury to
person or in New York. The standard for whether a court could assert long-
property properly
arm jurisdiction under CPLR 302(a) previously hinged on a two-part inquiry: (1) do the facts of
the case fallwithin the scope of one or more provisions of CPLR 302(a); and (2) assuming an
affirmative answer to the first question, would asserting jurisdiction comport with due process?
The U.S. Supreme Court's holding in Bristol-Myers Squibb Co. v. Superior Court of California,
San Francisco County, et al., 137 S. Ct. 1773 (2017) (hereinafter "BMS"), recently provided an
analysis of when a state's long-arm jurisdiction is unconstitutional and violates a defendant's
rights under the Fourteenth Amendment.
In BMS, the Supreme Court initially reaffirmed that personal jurisdiction of the State
courts is subject to review for compatibility with the Due Process Clause of the Fourteenth
Amendment. In BMS, it had already been adjudicatad at the State level that general jurisdiction
was lacking. As such, BMS addressed only the issue of specific jurisdiction.
By way of background, BMS involved eight lawsuits filed by more than 600 plaintiffs,
most of whom were not California residents, against the manufacturer of a blood thiññing drug
approach,"
that allegedly caused harm, Plavix. Applying a "sliding scale the California Supreme
rangiñg"
Court concluded that BMS's "wide contacts with California were sufficient to support
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specific jurisdiction over the claims brought by nonresident plaintiffs. See id., at 1776. The
United States Supreme Court disagreed and reversed the California Court's ruling. See id., at
1783-1784.
In reachiñg its determination, the Court stated that the mere fact that other plaintiffs were
prescribed, obtained, and ingested Plavix in California does not allow the State of California to
assert specific jurisdiction over the nonresident's claims. Nor was it sufficient that BMS
conducted research in California on matters unrelated to Plavix (and thus, unrelated to these
claims) or that BMS contracted with a California company to distribute Plavix nationally.
Rather, the Supreme Court determined that the action for which a defendant is allegedly
forum."
liable must "arise out of or relate to the defendant's contacts with the The Court further
explained that for a State court to exercise specific jurisdiction, there must be an "affiliation
between the forum and the underlying controversy, principally, [an] activity or an occurrence
State."
that takes place in the forum Citing, Goodyear, supra, 564 U. S., at 919. When no such
connection exists, specific jurisdiction is lacking regardless of the extent of a defendant's
_uncoññected activities in the State. See id., at 1781 (emphasis added); see also, Goodyear,
supra, 564 U. S., at 931 ("[E]ven regularly occurring sales of a product in a State do not justify
the exercise ofjurisdiction over a claim unrelated to those sales").
In the wake of the BMS decision, Courts across the country have found specific
jurisdiction lacking in asbestos cases where plaintiffs have sued in states that have no coññection
plaintiffs'
to the alleged exposures to asbestes. For example, the Seattle federal court in Hodjera
v. BASF Catalysts LLC, 2017 U.S. Dist. LEXIS 119945 (W.D. Wash., July 31, 2017), ruled that
a plaintiffs history of working with asbestos-containing products in Toronto that were similar to
those sold by the defendants in Washington failed to establish specific jurisdiction. In
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Applying the Supreme Court's analysis in BMS to the instant action, there can be no
plaintiffs'
specific jurisdiction as to GPC or NAPA in this case. Here, claims against these
from"
defendants do not "arise any activity by these defendants in New York or any GPC or
NAPA real property in New York. Instead, Mr. Hall specifically testified before his death that
his only alleged exposure to asbestos from brakes associated with GPC and NAPA occurred in
the State of Kansas. See, Exhibit E.
Based on the foregoing, the case against NAPA and GPC should be dismissed based on a
lack of jurisdiction, both general and specific, over these moving defendants.
C. EVEN IF THE COURT FINDS THAT ASSERTING JURISDICTION WOULD
COMPORT WITH DUE PROCESS, UNDER NEW YORK'S LONG-ARM STATUTE.
PLAINTIFFS HAVE FAILED TO ESTABLISH SPECIFIC JURISDICTION AS TO
GPC AND NAPA
Even if this Court determines that asserting jurisdiction would comport with due process
as noted above, specific jurisdiction, or the ability of New York courts to exercise personal
jurisdiction over a foreign defendant on claims arising out of the foreign defendant's cortuicts
with New York State, is codified in CPLR§302(a), i.e. New York's long-arm statute. Here, an
analysis of the facts of the case demoratrate that plaintiffs cannot establish specific jurisdiction
as to GPC and NAPA pursuant to CPLR §302(a).
In the recent decision in the asbestos-related action of Trumbull v. Adience, Inc. (Matter
of New York City Asbestos Litig.), 2017 N.Y. Misc. LEXIS 839, *1, 2017 NY Slip Op 30459(U),
1 (N.Y. Sup. Ct. Mar. 6, 2017), the Court found that defendâñt Amtico was not subject to
specific jurisdiction under New York's long-arm statute, because there was no evidence that
plaintiff s injuries arose from any of Amtico's business transactions in New York; the plaintiffs
allegations of exposure to asbestos from Amtico's products occurred entirely out of New York;
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and plaintiff failed to demonstrate that Amtico's actions caused injury to a person or property
within the state.
Similarly, in the instant action, there is no evidence that Mr. Hall's injuries arose from
either GPC or NAPA's business transactions in New York. Indeed, Mr. Hall's alleged exposure
to any product purportedly associated with GPC and NAPA occurred entirely outside of New
York, and plaintiff has not alleged that GPC and/or NAPA's alleged tortious conduct caused
injury to a person or property within New York. The facts of this case are simply not sufficient
to provide this Court with specific jurisdiction over these moving defeñdsts.
1. GPC and NAPA Are Not Subject to Specific Jurisdiction Under
CPLR §302(a)(1)
For a New York Court to exercise personal jurisdiction over a foreign defendant under
CPLR §302(a)(1), the court must determine: (1) whether the defendant transacted business in
New York, and, if so, (2) whether the cause of action asserted arose from that transaction. See
id., at p. 7.
Although GPC and NAPA, in the history of their corporate existence, may have
transacted business in New York, plaintiff s claim in this matter does not arise out of any
business these defendants may have transacted in New York. Mr. Hall's only allegations against
GPC and NAPA are related to his work with brake products utilized and purchased in Kansas.
See, Exhibit E. Further, no business transaction of GPC and NAPA in New York is connected to
the brake products at issue; indeed, those brake products were neither manufactured nor
remanufactured in New York. Thus, specific jurisdiction does not lie against either GPC or
NAPA under CPLR §302(a)(1).
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2. GPC and NAPA Are Not Subject to Specific Jurisdiction Under
CPLR §302(a)(2)
CPLR §302(a)(2) applies to tortious acts committed within the State of New York. See,
CPC Int'l Inc. v. McKesson Corp., 70 N.Y.2d 268, 286-287 (1987). Again, here plaintiff is
alleging that Mr. Hall was exposed to asbestos from a product associated with GPC and NAPA
in Kansas. Thus, this matter does not involve any alleged tortious acts in the State of New York
and jurisdiction over GPC and NAPA does not lieunder CPLR §302(a)(2).
3. GPC and NAPA Are Not Subject to Specific Jurisdiction Under
CPLR §302(a)(3)
CPLR §302(a)(3) provides for personal jurisdiction where a foreign defendant "commits
state"
a tortious act without the state causing injury to a person or oronerty within the if one
of two additional conditions are met: (1) either the foreign defendant "regularly does or solicits
business, or engages in any other persistent course of conduct, or derives substantial revenue
state"
from goods used or consumed or services rendered in the or (2) the foreign defendant
"expects or should reasonably expect the act to have concmuences in the state and derives
commerce."
substantial revenue from interstate or international [cmphasis added].
It isimportant to note that the firstinquiry, pursuant to the statute, is whether a defendant
committed a tortious action outside of New York that causes injury inside New York State.
Only after this element is satisfied should the Court look to the foreign defendant's business
activities involving the state, which included the defendant's course of conduct in the state and
revenue from the state. See, CPLR§302(a)(3)(i).
In the instant action, plaintiff's allegations against GPC and NAPA involve alleged
tortious conduct that occurred outside of New York and did not cause injury to Mr. Hall
within the State of New York. Rather, Mr. Hall was allegedly exposed to asbestos from
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products associated with GPC and NAPA in Kansas and the situs of injury is therefore Kansas.
See Grabowski v. A.O. Smith Corporation, et al., New York County, Decision June 29, 2018
(Hon. M. Mendez) a copy of which is attached hereto as Exhibit 2. He was subsequently
diagnosed with an alleged asbestos-related disease in Kansas as well. Thus, plaintiff cannot
satisfy the firstinquiry under CPLR §302(a)(3). Accordingly, the Court need not delve into an
analysis of GPC or NAPA's business in New York or expectations regarding its actions and their
consequences in New York. Here, there is simply no allegation that GPC or NAPA caused
injury to a person within the State of New York. Thus, jurisdiction over GPC and NAPA does
not lie under CPLR §302(a)(3).
4. GPC and NAPA Are Not Subject to Specific Jurisdiction Under
CPLR §302(a)(4)
CPLR §302(a)(4) provides for specific jurisdiction over a defendant who owns, uses, or
possesses real property within New York State. New York courts have interpreted this sectics to
require a relationship between the property and the cause of action sued upon. See, Lancaster v.
Colonial Motor Freight, 177 A.D.2d 152 (1st Dept. 1992). Here, plaintiff's claims do not arise
out of GPC or NAPA's ownership, use, or possession of any real property within New York
State. Thus, jurisdiction over these defendâüts does not lie under CPLR §302(a)(4).
14
13966319.1
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FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017
NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018
CONCLUSIO_N
Based upon the foregaing, Genuine Parts Company and National Automotive Parts
Association respectfully request that the Court dismiss this action against them for lack of
personal jurisdiction, dismissing all claims and cross-claims against it, and for any and all such
further relief as the Court deems just and proper.
Dated: Octoberd, 2018
BARCLAY DAMON, LLP
By: __ ___
Peter S. Marlette, Esq.
Attorneys for Defendant
Genuine Parts Company and National
Automotive Parts Association
The Avant - Suite 1200
Building
200 Delaware Avenue
Buffalo, New York 14202
Telephone: (716) 856-5500
15
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Preview
FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 SUPREME COURT OF THE STATE OF NEW YORK FIRST JUDICIAL DISTRICT In Re: First Judicial District Asbestos Litigation This Document Applies to: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STACEY LYNN BROWN, as Administratrix of the Estate of STEVEN L. HALL, deceased, Plaintiff, Index No.: 190012/2017 vs. GENUINE PARTS COMPANY, NATIONAL AUTOMOTIVE PARTS ASSOCIATION, et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS, GENUINE PARTS COMPANY AND NATIONAL AUTOMOTIVE PARTS ASSOCIATION'S, MOTION TO DISMISS BARCLAY DAMON LLP Attorneys for Defendants Genuine Parts Company and National Automotive Parts Association The Avant - Suite 1200 Building 200 Delaware Avenue Buffalo, New York 14202-2150 Telephone: (716) 856-5500 Peter S. Marlette, Esq. Of Counsel 13966319.1 1 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 PRELIMINARY ST_ATEMENT Defendants, Genuine Parts Company (hereinafter "GPC") and National Automotive Parts Association (hereinafter "NAPA") submit this Memorandum of Law in support of their motion to dismiss the Complaint based on lack of personal jurisdiction, along with the affirmation of Peter S. Marlette, Esq. dated October 4, 2018 ("Marlette Affidavit"), and the exhibits attached thereto, including the affidavit of GPC and NAPA representatives, Mark Hohe, sworn to September 7, 2018 ("Hohe Affidavit") and Gaylord Spencer, sworn to August 3, 2018 ("Gaylord Affidavit"), attached to the Marlette Affidavit as Exhibit H and Exhibit I,respectively. Please note that all further references to exhibits refer to the exhibits attached to the Marlette Affidavit. As fully set forth herein, GPC and NAPA's motion should be granted because this Court lacks personal jurisdiction over these defendants in this case. 2 13%6319.1 2 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 STATEMENT OF FACTS The facts in support of this motion are fully set forth in the accompanying affidavit of Peter S. Marlette, Esq. sworn to on September 11, 2018. Briefly, plaintiff alleges that Mr. Hall contracted mesothelioma as a result of his alleged exposure to asbestos and asbestos-containing products attributable to numerous defendâñts. See, Marlette Affidavit, Exhibit A. As it relates to GPC and NAPA, the products that Mr. Hall associates with these defêñdañts are brake products that he used during automotive work at his personal residences in the State of Kansas and during work for various gas stations in the State of Kansas. See, Exhibit E. Any brake job that may have been performed with a NAPA brake was done in Kansas during a time when Mr. Hall was a resident of the State of Kansas. See, Exhibit E. Plaintiff's mesothelioma diagnosis was made in Kansas and plaintiff received all of his medical treatment in either Kansas or Texas. See, Exhibit E. 3 13%6319.1 3 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 ARGUMENT I. GPC AND NAPA ARE NOT SUBJECT TO THE JURISDICTION OF NEW YORK COURTS AND THIS CASE SHOULD THEREFORE BE DISMISSED AGAINST THESE DEFENDANTS Initially, in order to maintain a claim against GPC and NAPA in this jurisdiction, plaintiff must establish that the Court has jurisdiction over these defendants in this action. See, Stewart v. Volkswagen of America, 81 N.Y.2d 203, 207 (1993); Lamarr v. Klein, 315 N.Y.S.2d 695, 697 (1970). Specifically, plaintiff must establish that (i) New York law confers jurisdiction over both GPC and NAPA, and (ii)the exercise of jurisdiction over these defendants comports with the Due Process Clause of the United States Constitution, which requires that any exercise of justice." jurisdiction be consistent with "traditional notions of fair play and substantial Brown v. Lockheed Martin Corp., 814 F.3d 619, 625 (2d Cir. 2016), citing International Shoe Co. v.Washington, 326 U.S. 310, 316 (1945); Sonera Holding B.V v Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014). "Although a plaintiff is not required to plead and prove jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests plaintiff." upon the Pichardo v. Zayas, 122 A.D.3d 699, 700-701 (2d Dept. 2014). In this case, plaintiff cannot satisfy this burden because her claims agairst GPC and NAPA have nothing to do with the State of New York. Mr. Hall resided in Kansas for his entire life except for a short period of time before his death when he stayed with his daughter in Texas. See, Exhibits D and E. GPC is a Georgia corporation with its corporate headquarters and principal place of business in Georgia. See, Exhibit H. NAPA is a Michigan Corporation with its principal place of business in Georgia. See, Exhibit I. Further, plaintiff's claims against NAPA and GPC arise from work performed with automotive brakes purchased and utilized in 4 13%6319.1 4 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 the State of Kansas. See, Exhibit E. Furthermore, any brakes attributable to NAPA and GPC purchased in Kansas were not manufactured nor remanufactured in New York. See Exhibit H. On these facts, New York law does not confer jurisdiction over GPC or NAPA. Even if New York law conferred jurisdiction over these defendants in this case, exercising jurisdiction over GPC and NAPA would violate its due process rights guaranteed by the U.S. Constitution and impermissibly burden interstate commerce in violation of the United States Constitution's Fourteenth Amendment. A. NEITHER GPC NOR NAPA ARE SUBJECT TO GENERAL JURISDICTION UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT In New York, general jurisdiction is set forth under CPLR §301, which states that, "[a] court may exercise such jurisdiction over persons, property, or status as might have been heretofore." all- exercised Although it was long understood to permit the exercise of general, "present" purpose, jurisdiction over foreign entities that were deemed in New York by virtue of their continuous business activity here, this is no longer the case pursuant to a series of recent decisions issued by the U.S. Supreme Court in 2011, 2014 and 2017. Specifically, the U.S. Supreme Court eradicatal such wide-reachiñg general jurisdiction in Goodyear v. Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011), and Daimler v. Baumañ, 134 S. Ct. 746, 761-62 (2014). In Daimler, the Court held that, absent circumstances," "exceptional the Due Process Clause of the Fourteenth Amendment precludes a state from exercising general jurisdiction over foreign corporations that are ñêither incorporated in,nor have their principal places of business in, that state. 134 S. Ct. at 761. For a corporation, jurisdiction" the "paradigm forum for the exercise of general is where the corporation "is fairly home," regarded as at Goodyear, 131 S. Ct. 2853-54, which is the corporation's place of incorporation and principal place of business. See,Daimler, 134 S. Ct. at 760-61. 5 13966319.1 5 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 In January 2017, the Supreme Court reaffirmed Daimler in BNSF Railway Co. v. Tyrrell, Employers' 137 S. Ct. 810 (2017). The Tyrrell case involved consolidated Federal Liability Act (FELA) actions filed in Montana state court by nonresidents against a railroad that did business in Montana but was incorporated and had its principal place of business elsewhere. The Court reversed a Montana Supreme Court opinion finding that the railroad's extensive contacts with business" within" Montana meant that it was "doing and "found the state, such that general jurisdiction could be exercised. The U.S. Supreme Court specifically rejected the Montana high court's focus on the scale of the railroad's business in the state. The Court held that the railroad's in-state business did "not suffice to permit the assertion of general jurisdiction over claims . . . Montana." that are unrelated to any activity occurring in New York courts, interpreting Daimler, have determined the place of organization/principal place of business binary is the only grounds sufficient to give rise to general jurisdiction. See, D & R Glob. Selections, S.L. v. Pineiro, 128 A.D.3d 486, 487 (1st Dept. 2015), leave to appeal granted, 26 N.Y.3d 914 (2015) (holding that "[a]s a defendant neither is incorporated in New York State nor has itsprincipal place of business here, New York courts may not exercise jurisdiction over [the defendant] under CPLR 301."). A case that is exactly on-point that arose from the New York City Asbestos Litigation (NYCAL) is Trumbull v. Adience, Inc. (Matter of New York City Asbestos Litig.), 2017 N.Y. Misc. LEXIS 839, *1, 2017 NY Slip Op 30459(U), 1 (N.Y. Sup. Ct. Mar. 6, 2017), which was decided on March 6, 2017 by Justice Peter H. Moulton, J.S.C. In Trumbull, plaintiff was allegedly exposed to asbestos in Missouri and commenced suit in New York City against a Delaware corporation with its principal place of business in Massãehüsetts. The court emphasized, and plaintiff conceded, that "defêñdãnt is not subject to general jurisdiction based 6 13966319.1 6 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 home" on Daimler, as itcannot be considered "at in New York since it is neither incorporated nor maintains itsprincipal place of business within the state. Thus, under the Supreme Court's binding interpretation of the Due Process Clause, New York courts may not exercise general jurisdiction pursüäut to CPLR 301 over a defendant that is neither incorporated in New York State nor has its principal place of business here. See, D & R Glob. Selections, S.L. v. Pineiro, 128 A.D.3d 486, 487 (1st Dept. 2015), leave to appeal granted, 26 N.Y.3d 914, 44 N.E.3d 937 (2015); see also, Davis v. Scottish Re Grp. Ltd., 46 Misc. 3d 1206(A), 9 N.Y.S.3d 592 (Sup. Ct. New York County 2014) (explaining "[a]s a matter of due process, in order for a corporation to be añ1eñable to general (allpurpose) personal jurisdiction, suit must be brought in either the place of incorporation or principal place of business of the company"); Brown, 814 F.3d at 630 (holding that although Lockheed Martin had a physical presence in,and employed dozens of workers in, Connecticut for years, derived substantial many revenue from Connecticut-based operations, and is registered to do business in Connecticut, exercise of general jurisdiction over Lockheed Martin in Coññêcticut would violate Due Process clause); Gucci America v. Weixing Li, 768 F.3d 122, 134-37 (2d Cir. 2014) (Chinese bank with principal place of business in China and brañehes and cmployees in New York not subject to the general jurisdiction of New York courts). As set forth in the affidavit of its representative, Mark Hohe, GPC is incorporated in Georgia with a principal place of business in Georgia. See, Exhibit H, at paragraphs 6-7. In addition, as set forth in the affidavit of its representative, Gaylord Spencer, NAPA is incorporated in Michigan and has its principal place of business in Georgia. See, Exhibit I,at home," paragraphs 4-5. Thus, neither defendant is "at as defined by the Sugozuo Court, in New 7 13966319.1 7 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 home" York. Accordingly, as neither GPC nor NAPA are "at in New York, these defêñdañts are not subject to general jurisdiction in the State of New York. B. GPC AND NAPA ARE NOT SUBJECT TO SPECIFIC JURISDICTION UNDER THE FOURTEENTH AMENDMENT PURSUANT TO THE RECENT U.S. SUPREME COURT DECISION IN BRISTOL-MYERS SOUIBB CO. V. SUPERIOR COURT OF CAL1FORNIA. CPLR §302(a), which is New York's long-arm statue, addresses specific jurisdiction over a non-domiciliary for claims that arise out of: (1) business activity in New York; (2) a tortious act committed in New York; (3) a tortious act committed outside New York that causes injury to person or in New York. The standard for whether a court could assert long- property properly arm jurisdiction under CPLR 302(a) previously hinged on a two-part inquiry: (1) do the facts of the case fallwithin the scope of one or more provisions of CPLR 302(a); and (2) assuming an affirmative answer to the first question, would asserting jurisdiction comport with due process? The U.S. Supreme Court's holding in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, et al., 137 S. Ct. 1773 (2017) (hereinafter "BMS"), recently provided an analysis of when a state's long-arm jurisdiction is unconstitutional and violates a defendant's rights under the Fourteenth Amendment. In BMS, the Supreme Court initially reaffirmed that personal jurisdiction of the State courts is subject to review for compatibility with the Due Process Clause of the Fourteenth Amendment. In BMS, it had already been adjudicatad at the State level that general jurisdiction was lacking. As such, BMS addressed only the issue of specific jurisdiction. By way of background, BMS involved eight lawsuits filed by more than 600 plaintiffs, most of whom were not California residents, against the manufacturer of a blood thiññing drug approach," that allegedly caused harm, Plavix. Applying a "sliding scale the California Supreme rangiñg" Court concluded that BMS's "wide contacts with California were sufficient to support 8 13966319.1 8 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 specific jurisdiction over the claims brought by nonresident plaintiffs. See id., at 1776. The United States Supreme Court disagreed and reversed the California Court's ruling. See id., at 1783-1784. In reachiñg its determination, the Court stated that the mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California does not allow the State of California to assert specific jurisdiction over the nonresident's claims. Nor was it sufficient that BMS conducted research in California on matters unrelated to Plavix (and thus, unrelated to these claims) or that BMS contracted with a California company to distribute Plavix nationally. Rather, the Supreme Court determined that the action for which a defendant is allegedly forum." liable must "arise out of or relate to the defendant's contacts with the The Court further explained that for a State court to exercise specific jurisdiction, there must be an "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence State." that takes place in the forum Citing, Goodyear, supra, 564 U. S., at 919. When no such connection exists, specific jurisdiction is lacking regardless of the extent of a defendant's _uncoññected activities in the State. See id., at 1781 (emphasis added); see also, Goodyear, supra, 564 U. S., at 931 ("[E]ven regularly occurring sales of a product in a State do not justify the exercise ofjurisdiction over a claim unrelated to those sales"). In the wake of the BMS decision, Courts across the country have found specific jurisdiction lacking in asbestos cases where plaintiffs have sued in states that have no coññection plaintiffs' to the alleged exposures to asbestes. For example, the Seattle federal court in Hodjera v. BASF Catalysts LLC, 2017 U.S. Dist. LEXIS 119945 (W.D. Wash., July 31, 2017), ruled that a plaintiffs history of working with asbestos-containing products in Toronto that were similar to those sold by the defendants in Washington failed to establish specific jurisdiction. In 9 13966319.1 9 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 10 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 Applying the Supreme Court's analysis in BMS to the instant action, there can be no plaintiffs' specific jurisdiction as to GPC or NAPA in this case. Here, claims against these from" defendants do not "arise any activity by these defendants in New York or any GPC or NAPA real property in New York. Instead, Mr. Hall specifically testified before his death that his only alleged exposure to asbestos from brakes associated with GPC and NAPA occurred in the State of Kansas. See, Exhibit E. Based on the foregoing, the case against NAPA and GPC should be dismissed based on a lack of jurisdiction, both general and specific, over these moving defendants. C. EVEN IF THE COURT FINDS THAT ASSERTING JURISDICTION WOULD COMPORT WITH DUE PROCESS, UNDER NEW YORK'S LONG-ARM STATUTE. PLAINTIFFS HAVE FAILED TO ESTABLISH SPECIFIC JURISDICTION AS TO GPC AND NAPA Even if this Court determines that asserting jurisdiction would comport with due process as noted above, specific jurisdiction, or the ability of New York courts to exercise personal jurisdiction over a foreign defendant on claims arising out of the foreign defendant's cortuicts with New York State, is codified in CPLR§302(a), i.e. New York's long-arm statute. Here, an analysis of the facts of the case demoratrate that plaintiffs cannot establish specific jurisdiction as to GPC and NAPA pursuant to CPLR §302(a). In the recent decision in the asbestos-related action of Trumbull v. Adience, Inc. (Matter of New York City Asbestos Litig.), 2017 N.Y. Misc. LEXIS 839, *1, 2017 NY Slip Op 30459(U), 1 (N.Y. Sup. Ct. Mar. 6, 2017), the Court found that defendâñt Amtico was not subject to specific jurisdiction under New York's long-arm statute, because there was no evidence that plaintiff s injuries arose from any of Amtico's business transactions in New York; the plaintiffs allegations of exposure to asbestos from Amtico's products occurred entirely out of New York; 11 13%6319.1 11 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 and plaintiff failed to demonstrate that Amtico's actions caused injury to a person or property within the state. Similarly, in the instant action, there is no evidence that Mr. Hall's injuries arose from either GPC or NAPA's business transactions in New York. Indeed, Mr. Hall's alleged exposure to any product purportedly associated with GPC and NAPA occurred entirely outside of New York, and plaintiff has not alleged that GPC and/or NAPA's alleged tortious conduct caused injury to a person or property within New York. The facts of this case are simply not sufficient to provide this Court with specific jurisdiction over these moving defeñdsts. 1. GPC and NAPA Are Not Subject to Specific Jurisdiction Under CPLR §302(a)(1) For a New York Court to exercise personal jurisdiction over a foreign defendant under CPLR §302(a)(1), the court must determine: (1) whether the defendant transacted business in New York, and, if so, (2) whether the cause of action asserted arose from that transaction. See id., at p. 7. Although GPC and NAPA, in the history of their corporate existence, may have transacted business in New York, plaintiff s claim in this matter does not arise out of any business these defendants may have transacted in New York. Mr. Hall's only allegations against GPC and NAPA are related to his work with brake products utilized and purchased in Kansas. See, Exhibit E. Further, no business transaction of GPC and NAPA in New York is connected to the brake products at issue; indeed, those brake products were neither manufactured nor remanufactured in New York. Thus, specific jurisdiction does not lie against either GPC or NAPA under CPLR §302(a)(1). 12 13966319.1 12 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 2. GPC and NAPA Are Not Subject to Specific Jurisdiction Under CPLR §302(a)(2) CPLR §302(a)(2) applies to tortious acts committed within the State of New York. See, CPC Int'l Inc. v. McKesson Corp., 70 N.Y.2d 268, 286-287 (1987). Again, here plaintiff is alleging that Mr. Hall was exposed to asbestos from a product associated with GPC and NAPA in Kansas. Thus, this matter does not involve any alleged tortious acts in the State of New York and jurisdiction over GPC and NAPA does not lieunder CPLR §302(a)(2). 3. GPC and NAPA Are Not Subject to Specific Jurisdiction Under CPLR §302(a)(3) CPLR §302(a)(3) provides for personal jurisdiction where a foreign defendant "commits state" a tortious act without the state causing injury to a person or oronerty within the if one of two additional conditions are met: (1) either the foreign defendant "regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue state" from goods used or consumed or services rendered in the or (2) the foreign defendant "expects or should reasonably expect the act to have concmuences in the state and derives commerce." substantial revenue from interstate or international [cmphasis added]. It isimportant to note that the firstinquiry, pursuant to the statute, is whether a defendant committed a tortious action outside of New York that causes injury inside New York State. Only after this element is satisfied should the Court look to the foreign defendant's business activities involving the state, which included the defendant's course of conduct in the state and revenue from the state. See, CPLR§302(a)(3)(i). In the instant action, plaintiff's allegations against GPC and NAPA involve alleged tortious conduct that occurred outside of New York and did not cause injury to Mr. Hall within the State of New York. Rather, Mr. Hall was allegedly exposed to asbestos from 13 13966319.1 13 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 products associated with GPC and NAPA in Kansas and the situs of injury is therefore Kansas. See Grabowski v. A.O. Smith Corporation, et al., New York County, Decision June 29, 2018 (Hon. M. Mendez) a copy of which is attached hereto as Exhibit 2. He was subsequently diagnosed with an alleged asbestos-related disease in Kansas as well. Thus, plaintiff cannot satisfy the firstinquiry under CPLR §302(a)(3). Accordingly, the Court need not delve into an analysis of GPC or NAPA's business in New York or expectations regarding its actions and their consequences in New York. Here, there is simply no allegation that GPC or NAPA caused injury to a person within the State of New York. Thus, jurisdiction over GPC and NAPA does not lie under CPLR §302(a)(3). 4. GPC and NAPA Are Not Subject to Specific Jurisdiction Under CPLR §302(a)(4) CPLR §302(a)(4) provides for specific jurisdiction over a defendant who owns, uses, or possesses real property within New York State. New York courts have interpreted this sectics to require a relationship between the property and the cause of action sued upon. See, Lancaster v. Colonial Motor Freight, 177 A.D.2d 152 (1st Dept. 1992). Here, plaintiff's claims do not arise out of GPC or NAPA's ownership, use, or possession of any real property within New York State. Thus, jurisdiction over these defendâüts does not lie under CPLR §302(a)(4). 14 13966319.1 14 of 15 FILED: NEW YORK COUNTY CLERK 10/09/2018 12:21 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 540 RECEIVED NYSCEF: 10/09/2018 CONCLUSIO_N Based upon the foregaing, Genuine Parts Company and National Automotive Parts Association respectfully request that the Court dismiss this action against them for lack of personal jurisdiction, dismissing all claims and cross-claims against it, and for any and all such further relief as the Court deems just and proper. Dated: Octoberd, 2018 BARCLAY DAMON, LLP By: __ ___ Peter S. Marlette, Esq. Attorneys for Defendant Genuine Parts Company and National Automotive Parts Association The Avant - Suite 1200 Building 200 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 856-5500 15 13%6319.1 15 of 15