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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK:
In Re: New York City Asbestos Litigation
______________________________________________ Hon. Lucy Billings, J.S.C.
SHIRLEY JO GODFREY, Individually and Index No. 190280/2015
as Executrix of the Estate of ROBERT C. GODFREY,
deceased,
Plaintiffs,
-against-
A.O. SMITH WATER PRODUCTS, et al.,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF
CERTAINTEED CORPORATION’S MOTION TO DISMISS
Craig Blau, Esq.
Mark I. Friesz, Esq.
Jason F. Kaufman, Esq.
DARGER ERRANTE YAVIZ & BLAU LLP
116 East 27 th Street at Park Avenue
PP
New York, NY 10016
212.452.5300
Counsel for CertainTeed Corporation
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ..................................................................................................... 1
SUMMARY OF RELEVANT TESTIMONY & FACTS ................................................................ 1
ARGUMENT ................................................................................................................................. 2
I. CertainTeed Is Not Subject To The Jurisdiction Of New York Courts And This Case
Should Therefore Be Dismissed Against Certainteed ............................................................... 2
A. CertainTeed Is Not Subject To Jurisdiction Under CPLR 301. .......................................... 3
B. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302. .......................................... 5
1. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(1) Or
(a)(4) Because Plaintiffs’ Claims Do Not Arise From Any Of CertainTeed’s
Contacts With New York. .......................................................................................... 6
2. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(2) Because
It Did Not Commit A Tortious Act In New York. ....................................................... 7
3. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(3) Because
The Alleged Injury Did Not Occur In New York. ....................................................... 7
C. CertainTeed Is Not Subject To The General Jurisdiction Of New York Courts
By Virtue Of Its Registration To Do Business In The State. .............................................. 8
CONCLUSION ............................................................................................................................ 17
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TABLE OF AUTHORITIES
Federal Cases
Augsbury Corp. v. Petrokey Corp.
97 A.D. 2d 173, 175 (3d Dep't 1983) ............................................................................... 10, 13
Aybar v. Aybar
2016 WL 3389890, at *1 (Sup. Ct., Queens County 2016) ......................................... 11, 12, 13
Bagdon v. Philadelphia & Reading Coal & Iron Co.
217 NY 432, 436-37 [1916] ................................................................................................... 10
Bailen v. Air & Liquid Systems Corp.
No. 190318/12, (Sup. Ct., New York County, August 05, 2014) (Heitler, J.).................... 11, 13
Barrett v. Union Pac. R.R. Co.
No. S063914, 2017 WL 823860 (Or. Mar. 2, 2017) ............................................................... 15
Beach v. Citigroup Alt. Invs. LLC
No. 12 Civ. 7717 (PKC), 2014 WL 904650, at *6 (S.D.N.Y. 2014) ................................. 11, 12
Benson v. Syntex Laboratories, Inc.
161 Misc. 2d 822, 614 N.Y.S.2d 990 (Sup. Ct. N.Y. Co. 1994) ................................................7
BNSF Ry. Co. v. Tyrell
137 S. Ct. 1549, 198 L.Ed.2d 36 (2017) ...................................................................................4
Bonkowski v. HP Hood LLC
2016 WL 4536868, at *2–4 (E.D.N.Y. Aug. 30, 2016)..................................................... 12, 13
Brown v. Lockheed Martin Corp.
814 F.3d 619 (2d Cir. 2016) ..........................................................................2, 4, 10, 12, 13, 14
Chatwal Hotels & Resorts LLC v. Dollywood
90 F. Supp. 3d 97 (S.D.N.Y. 2015) .................................................................................. 11, 13
Chong v. Healthtronics, Inc.
2007 U.S. Dist. LEXIS 45956 at *17, 2007 WL 1836831 (E.D.N.Y. June 20, 2007) .............. 13
Corporate Jet Support, Inc. v Lobosco Ins. Group, L.L.C.
2015 NY Slip Op 32438(U) (Sup. Ct., New York County, October 7, 2015) (Kern, J.) .......... 11
D & R Glob. Selections, S.L. v. Pineiro
128 A.D.3d 486, 487, 9 N.Y.S.3d 234 (1 st Dep’t 2015) ............................................................4
PP
Daimler v. Bauman
134 S. Ct. 746 (2014).................................................................. 3, 9, 10, 11, 12, 13, 14, 15, 16
Davis v. Scottish Re Grp. Ltd.
46 Misc. 3d 1206(A), 9 N.Y.S.3d 592 (Sup. Ct. New York County 2014) ................................4
Display Works, LLC v. Bartley
182 F. Supp. 3d at 175 ........................................................................................................... 15
Doubet LLC v. Trustees of Columbia Univ. in the City of N.Y.
99 AD3d 433 [1st Dept 2012] ................................................................................................ 10
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Famular v. Whirlpool Corp.
No. 16 CV 944 (VB), 2017 WL 2470844, at *4 (S.D.N.Y. June 7, 2017) ............................... 12
Fantis Foods, Inc. v. Standard Importing
49 N.Y.2d 317 (1980) ..............................................................................................................7
Feathers v. McLucas
15 N.Y.2d 443, 261 N.Y.S.2d 8 (1965). ...................................................................................7
Figueroa v. BNSF Ry. Co.
No. S063929, 2017 WL 822719 (Or. Mar. 2, 2017) ............................................................... 15
Genuine Parts Co. v. Cepec
137 A.3d 123, 126 (Del. 2016)............................................................................................... 15
Goodyear v. Dunlap Tires Operations, S.A. v. Brown
131 S. Ct. 2846 (2011) ....................................................................................... 3, 9, 10, 15, 16
Gucci America v. Weixing Li
768 F.3d 122 (2d Cir. 2014) ............................................................................................... 4, 11
Hardware v. Ardowork Corp.
117 A.D.3d 561986 N.Y.S. 2d 445, (1st Dep’t 2014) ...............................................................8
International Shoe Co. v. Washington
326 U.S. 310 (1945) ................................................................................................................2
Kramer v. Hotel Los Monteros S.A.
57 A.D.2d 756, 94 N.Y.S. 2d 415 (1st Dep't 1977)...................................................................7
Lamarca v. Pak Mor Mfg. Co.
95 N.Y.2d 210, 713 N.Y.S.2d 304 (2000) ................................................................................5
Lamarr v. Klein
315 N.Y.S.2d 695 (1970) .........................................................................................................2
Lancaster v. Colonial Motor Freight
177 AD 2d 152, 581 NYS 2d 283 (1st Dep’t 1992) ..................................................................7
Landoil Res. Corp. v. Alexander & Alexander Servs., Inc.
918 F.2d 1039 (2d Cir. 1990) ................................................................................................. 11
McGowan v. Smith
52 N.Y.2d 268, 437 N.Y.S.2d 643 (1981) ................................................................................6
Minholz v. Lockheed Martin Corp.
227 F.Supp.3d 249 (N.D.N.Y. 2016)...................................................................................... 14
Mischel v. Safe Haven Enters., LLC
2017 NY Slip Op 30774(U) at 4-5 ................................................................................... 10, 11
Muollo v. Crestwood Village, Inc.
155 AD2d 420 [2nd Dept 1989] ............................................................................................. 10
S.L. v. Bodega Olegario Falcon Pineiro
29 N.Y.3d 292, 78 N.E.3d 1172 (2017)....................................................................................4
S.L. v. Pineiro
128 A.D.3d 486, 9 N.Y.S.3d 234 (1 st Dep’t 2015) ...................................................................4
PP
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Serov ex rel. Serova v. Kerzner Int'l Resorts, Inc.
52 Misc. 3d 1214(A), 43 N.Y.S.3d 769 (N.Y. Sup. Ct. 2016) ................................................. 11
Sonera Holding B.V. v Cukurova Holding A.S.
750 F.3d 221 (2d Cir. 2014) .....................................................................................................2
State ex rel. Norfolk S. Ry. v. Dolan
No. SC95514, 2017 WL 770977, at *8 (Mo. Feb. 28, 2017)................................................... 15
Stewart v. Volkswagen of America
81 N.Y.2d 203, 597 N.Y.S.2d 612 (1993) ................................................................................2
Taormina v. Thrifty Car Rental
No. 16-CV-3255 (VEC), 2016 WL 7392214, at *6–7
(S.D.N.Y. Dec. 21, 2016)................................................................................................. 11, 12
Trumbull v. Adience, Inc., et al.
Index No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017) (Moulton, J.) ..................... 7, 8
Walden v. Fiore
134 S. Ct. 1115 (2014) .............................................................................................................6
Wilderness USA, Inc. v. Deangelo Bros., LLC
2017 WL 3635123 (W.D.N.Y. August 23, 2017) ............................................................. 11, 14
Cases
Allan R. Stein, The Meaning of “Essentially At Home” in Goodyear Dunlop,
63 S.C.L.Rev. 527, 547-48 (2012) ......................................................................................... 16
Lee Scott Taylor, Registration Statutes, Personal Jurisdiction, and the Problem of
Predictability 103 Colum. L. Rev. 1163 (2003) ..................................................................... 16
Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of
Consent, 36 Cardozo L. Rev. 1343 (2015) ............................................................................. 16
Federal Statutes
CPLR 301 ............................................................................................................................... 3, 4
CPLR 301(a) ...............................................................................................................................9
CPLR 302 ...................................................................................................................................5
CPLR 302(a) ................................................................................................................... 5, 6, 8, 9
CPLR 302(a)(1) ..........................................................................................................................6
CPLR 302(a)(2) ..........................................................................................................................7
CPLR 302(a)(3) ...................................................................................................................... 7, 8
CPLR 302(a)(4) ...................................................................................................................... 6, 7
Statutes
N.Y. Bus. Corp. Law §1301 ........................................................................................ 1, 9, 14, 15
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PRELIMINARY STATEMENT
Defendant CertainTeed Corporation (“CertainTeed”) submits this Memorandum of Law in
support of its motion to dismiss the Complaint based on lack of personal jurisdiction, along with
the affirmation of Mark I. Friesz, Esq. dated October 6, 2017 (“Friesz Aff”), and the exhibits
attached thereto, including the affidavit of CertainTeed representative Michael T. Starczewski,
sworn to September 22, 2017 (“Starczewski Aff.”), attached to the Friesz Aff. at Ex. 6. As fully
set forth herein, CertainTeed’s motion should be granted because this Court lacks personal
jurisdiction over CertainTeed in this case.
SUMMARY OF RELEVANT TESTIMONY & FACTS
Decedent Robert Godfrey (“Mr. Godfrey”) testified that from 1973 to 1978 he was a
student attending and residing at Bradford College in Haverhill, Massachusetts. See Friesz Aff.,
Ex. 5, transcripts of Mr. Godfrey’s discovery deposition (“Godfrey Tr.”) at 26:13-24. Mr. Godfrey
further testified that from 1974 to 1978, he worked as a member of Bradford College’s grounds
crew, during which time he allegedly worked with a number of products that he believed contained
asbestos, including CertainTeed siding shingles, which he allegedly installed on certain buildings
on and around the Bradford College campus. Id. at 26:13-24; 33:16-34:6; 63:16-65:8; 81:21-24.
Mr. Godfrey testified to encountering CertainTeed siding shingles only in the State of
Massachusetts. See generally Ex. 5, Godfrey Tr. Mr. Godfrey has never alleged exposure to
any CertainTeed product in the State of New York.
CertainTeed is a Delaware corporation with its headquarters and principal place of business
in Pennsylvania. See Friesz Aff. Ex. 6, Starczewski Aff at ¶ 6. CertainTeed is registered to do
business in New York (Id. at ¶ 10) pursuant to N.Y. Bus. Corp. Law §1301. CertainTeed
manufactured asbestos-cement siding shingles for one or two years during the 1920s. CertainTeed
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has not manufactured siding shingles since the 1920s. See id. at ¶ 14. During certain years after
the 1920s, CertainTeed purchased asbestos-cement siding shingles from other companies and
relabeled them for resale under CertainTeed's name. See id. at ¶ 15. Specifically with respect to
customers on the east coast, from the early 1950s until approximately 1975, CertainTeed resold
asbestos-cement siding shingles that were manufactured by the National Gypsum Company.
National Gypsum Company, in turn, manufactured asbestos cement siding shingles at plants in
Louisiana, Missouri and New Jersey. See id. at ¶ 16. At all times relevant to this case,
CertainTeed did not sell any asbestos cement siding shingles which were manufactured in
the State of New York. See id. at ¶ 17.
ARGUMENT
I.
CERTAINTEED IS NOT SUBJECT TO THE JURISDICTION OF
NEW YORK COURTS AND THIS CASE SHOULD THEREFORE BE
DISMISSED AGAINST CERTAINTEED
Plaintiffs must establish that the Court has jurisdiction over CertainTeed in this action.
Stewart v. Volkswagen of America, 81 N.Y.2d 203, 207, 597 N.Y.S.2d 612, 615 (1993); Lamarr
v. Klein, 315 N.Y.S.2d 695, 697 (1970). Specifically, Plaintiffs must establish that (i) New York
law confers jurisdiction over CertainTeed, and (ii) the exercise of jurisdiction over CertainTeed
comports with the Due Process Clause of the United States Constitution, which requires that any
exercise of jurisdiction be consistent with “traditional notions of fair play and substantial justice.”
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).
Plaintiffs cannot satisfy this burden; their claims against CertainTeed have nothing to do
with the state of New York. CertainTeed is a Delaware corporation with its corporate headquarters
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and principal place of business in Pennsylvania. Plaintiffs’ claims against CertainTeed arise from
alleged exposure to CertainTeed cement siding shingles at Bradford College in Haverhill,
Massachusetts over forty years ago. On these facts, New York law does not confer jurisdiction
over CertainTeed. Even if New York law conferred jurisdiction over CertainTeed in this case,
exercising jurisdiction over CertainTeed would violate its due process rights guaranteed by the
U.S. Constitution.
A. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER
CPLR 301.
CPLR 301, which states that, “[a] court may exercise such jurisdiction over persons,
property, or status as might have been exercised heretofore,” was long understood to permit the
exercise of general, all-purpose, jurisdiction over foreign entities that were deemed “present” in
New York by virtue of their continuous business activity here. On the basis of such continuous
activity, a non-domiciliary could be sued in New York whether or not the claims related to or arose
out of any New York activity.
The U.S. Supreme Court eradicated such wide-reaching general jurisdiction in Goodyear
v. Dunlap Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011), and Daimler v. Bauman,
134 S. Ct. 746, 761-62 (2014). In Daimler, the Court held that, absent “exceptional
circumstances,” the Due Process Clause of the Fourteenth Amendment precludes a state from
exercising general jurisdiction over foreign corporations that are neither incorporated in, nor have
their principal places of business in, that state. 134 S. Ct. at 761. For a corporation, the “paradigm
forum for the exercise of general jurisdiction” is where the corporation “is fairly regarded as at
home,” Goodyear, 131 S. Ct. 2853-54, which is the corporation’s place of incorporation and
principal place of business. Daimler, 134 S. Ct. at 760-61. Indeed, just months ago, the Supreme
Court reaffirmed its holdings in Daimler, explaining that, “[o]ur precedent, however, explains that
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the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state
corporation before its courts when the corporation is not ‘at home’ in the State and the episode-in-
suit occurred elsewhere.” BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1554, 198 L.Ed.2d 36 (2017).
The BNSF Court likewise reiterated that “the ‘paradigm’ forums in which a corporate defendant is
‘at home’…are the corporation's place of incorporation and its principal place of business.” Id. at
1558.
Thus, under the Supreme Court’s binding interpretation of the Due Process Clause, New
York courts may not exercise general jurisdiction pursuant to CPLR 301 over a defendant that is
neither incorporated in New York State nor has its principal place of business here. D & R Glob.
Selections, S.L. v. Pineiro, 128 A.D.3d 486, 487, 9 N.Y.S.3d 234 (1 st Dep’t 2015), rev'd on other
PP
grounds, D &R Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 78
N.E.3d 1172 (2017). 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 amenable to general (all purpose) 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 many years, derived substantial revenue from Connecticut-based
operations, and is registered to do business in Connecticut, exercise of general jurisdiction over
Lockheed Martin in Connecticut 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
branches and employees in New York not subject to the general jurisdiction of New York courts).
Since CertainTeed is not “at home” in New York, it is not subject to the general jurisdiction
of New York courts under CPLR 301.
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B. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER
CPLR 302.
The United States Supreme Court has concretely held that, “[i]n order for a court to exercise
specific jurisdiction over a claim, there must be an ‘affiliation between the forum and underlying
controversy, principally [an] activity or an occurrence that takes place in the forum State’. When
there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s
unconnected activities in the State.” Bristol-Meyers Squibb Co. v. Superior Court of California,
San Francisco County, 137 S. Ct. 1773, 198 L.ED.2d 395 (2017). In this vein, CPLR 302(a), New
York’s long-arm statue, confers jurisdiction over a non-domiciliary for claims that arise out of:
(1) business activity in New York; or (2) a tortious act committed in New York; or (3) a tortious
act committed outside New York that causes injury to person or property in New York (except for
defamation), if the non-domiciliary (i) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods used or consumed or
services rendered, in the state, or (ii) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue from interstate or international
commerce; or (4) real property situated within the state.
Whether a court can properly assert long-arm jurisdiction under CPLR 302(a) hinges on a
two-part inquiry: (1) do the facts of the case fall within 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? Lamarca v. Pak Mor Mfg. Co., 95 N.Y.2d 210, 213-14,
713 N.Y.S.2d 304 (2000). Here, none of the provisions of CPLR 302 subject CertainTeed to the
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jurisdiction of the Court and, in any event, exercising jurisdiction over CertainTeed would violate
its due process rights. 1 PP
1. CERTAINTEED IS NOT SUBJECT TO JURISDICTION
UNDER CPLR 302(A)(1) OR (A)(4) BECAUSE PLAINTIFFS’
CLAIMS DO NOT ARISE FROM ANY OF CERTAINTEED’S
CONTACTS WITH NEW YORK.
Plaintiffs’ claims against CertainTeed do not “arise from” any activity by CertainTeed in
New York or any CertainTeed real property in New York. Plaintiffs claim instead that over forty
years ago, Mr. Godfrey was exposed to asbestos from CertainTeed cement siding shingles in
Haverhill, Massachusetts while working on Bradford College’s grounds crew from 1974 to 1978.
See Friesz Aff., Ex. 5, Godfrey Tr. at 33:16-34:6. At all times relevant to this case, CertainTeed, a
Delaware corporation with a principal place of business in Malvern, Pennsylvania, did not sell any
asbestos-cement siding shingles manufactured in New York. See Friesz Aff. at Ex. 6, Starczewski
Aff. ¶¶ 6; 17. The Court of Appeals held long ago that in a tort action for personal injuries, CPLR
302(a) does not confer jurisdiction where plaintiff’s injury occurred outside New York and did not
arise from an act or activity in New York. McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d
643, 645 (1981) (“[e]ssential to the maintenance of a suit against a nondomiciliary under CPLR
302 (subd [a], par 1) is the existence of some articulable nexus between the business transacted
and the cause of action sued upon …”). Indeed, this Court recently decided that personal
jurisdiction under CPLR 302(a)(1) was lacking with respect to a similarly situated defendant,
likewise incorporated in Delaware with an out-of-state principal place of business, to whose
1
See Walden v. Fiore, 134 S. Ct. 1115 (2014) (“the inquiry whether a forum state may assert specific jurisdiction over
a nonresident defendant ‘focuses on the relationship among the defendant, the forum, and the litigation.’ For a State
to exercise jurisdictionconsistent with due process, the defendant's suit-related conduct must create a substantial
connection with the forum State”) (citations omitted).
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product plaintiff encountered only outside of New York. Trumbull v. Adience, Inc., et al., Index
No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017) (Moulton, J.) (Friesz Aff. Ex. 7).
Finally, CPLR 302(a)(4) likewise is inapplicable because Plaintiffs’ claims do not arise
from any property CertainTeed may own in New York. Lancaster v. Colonial Motor Freight, 177
AD 2d 152, 581 NYS 2d 283 (1st Dep’t 1992).
2. CERTAINTEED IS NOT SUBJECT TO JURISDICTION
UNDER CPLR 302(A)(2) BECAUSE IT DID NOT COMMIT A
TORTIOUS ACT IN NEW YORK.
The “tortious act” referred to in CPLR 302(a)(2) is the manufacture of the allegedly
injurious product. Feathers v. McLucas, 15 N.Y.2d 443. 261 N.Y.S.2d 8 (1965). As noted, at all
times relevant to this case, CertainTeed did not sell any asbestos cement siding shingles
manufactured in New York. See Friesz Aff. Ex. 6, Starczewski Aff, at ¶¶ 14-17. Thus, CertainTeed
did not commit a tortious act in New York. Id. at ¶¶ 14-15. In fact, even if it could be said that
in a product exposure case, the tortious act occurs where the alleged exposure occurred, here the
proper venue would be Massachusetts. This Court has recently made clear that no jurisdiction
exists under CPLR 302(a)(2) where plaintiff alleges exposure to defendant’s product “entirely
outside of New York.” Trumbull, 190084/2016 (March 6, 2017) (Moulton, J.) (Friesz Aff. Ex. 7)
at p. 9. CPLR 302(a)(2) does not confer jurisdiction over CertainTeed.
3. CERTAINTEED IS NOT SUBJECT TO JURISDICTION
UNDER CPLR 302(A)(3) BECAUSE THE ALLEGED INJURY
DID NOT OCCUR IN NEW YORK.
To exercise jurisdiction under CPLR 302(a)(3), there has to be a tort committed outside
New York that injured plaintiff in New York. See Benson v. Syntex Laboratories, Inc., 161 Misc.
2d 822, 614 N.Y.S.2d 990 (Sup. Ct. N.Y. Co. 1994) citing Fantis Foods, Inc. v. Standard
Importing, 49 N.Y.2d 317, 325 (1980). The place of injury is where the alleged exposure occurred.
See Kramer v. Hotel Los Monteros S.A., 57 A.D.2d 756, 94 N.Y.S. 2d 415 (1st Dep't 1977) (where
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tourist from New York was bitten by dog in hotel in Spain and developed septicemia back in New
York, hotel was not subject to jurisdiction of New York courts under CPLR 302(a)(3); “the injury
. . . occurred in Spain even though its most severe medical result . . . did not manifest itself until
the plaintiff . . . returned to New York”); Hardware v. Ardowork Corp., 117 A.D.3d 561986 N.Y.S.
2d 445, (1st Dep’t 2014) (where child, domiciled and living in New York, was exposed to lead
paint in Connecticut, situs of the injury was Connecticut; thus, defendant Connecticut property
owner was not subject to jurisdiction in New York under CPLR 302(a)(3)).
Assuming, strictly for the sake of argument, that CertainTeed committed a tortious act
against Plaintiffs somewhere outside of New York, under New York law, Mr. Godfrey’s alleged
injury from CertainTeed siding shingles occurred in Massachusetts—the place of his alleged
exposure. Indeed, this Court’s recent
P
P decision in the Trumbull case makes further clear that Mr.
Godfrey’s alleged exposure to asbestos-containing siding shingles in Massachusetts does not
constitute an “injury to person or property within the state.” Trumbull, 190084/2016 (March 6,
2017) (Moulton, J.) (Friesz Aff. Ex. 7) at p. 10. CPLR 302(a)(3) does not confer jurisdiction over
CertainTeed.
In sum, CertainTeed is not subject to the jurisdiction of the Court under CPLR 302(a).
C. CERTAINTEED IS NOT SUBJECT TO THE GENERAL
JURISDICTION OF NEW YORK COURTS BY VIRTUE OF ITS
REGISTRATION TO DO BUSINESS IN THE STATE.
This case involves a Delaware corporate defendant headquartered in Pennsylvania
(CertainTeed), and alleged tortious conduct in Massachusetts. A litany of recent New York
decisions, discussed infra, have made clear that this case cannot—consistent with the Due Process
Clause—be pursued against CertainTeed in a New York court, regardless of CertainTeed’s
registration to do business in the state.
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CertainTeed is registered to do business in New York under N.Y. Bus. Corp. Law §1301.
This statute, which is set out in full in the margin, contains no express language stating that
registration to do business constitutes consent to the general jurisdiction of the New York courts. 2 PP
Whatever the law may have been prior to Daimler and Goodyear, those decisions and other cases
decided after them make plain that CertainTeed’s New York registration is not by itself sufficient
to confer general jurisdiction over the company.
This Court, in a decision issued just weeks ago, held that a foreign corporation does not
consent to the jurisdiction of New York’s Courts merely by merely registering to do business here.
Sean Snowdale et al. v. A.O . Smith Water Products et al., Index No. 190202/2015 (Sup. Ct. New
York County September 7, 2017) (Billings, J.) (Friesz Aff. Ex 8). As Your Honor explained in
Snowdale:
2
New York Bus. Corp. Law §1301, entitled “Authorization of foreign corporations,” states:
(a) A foreign corporation shall not do business in this state until it has been authorized to do so as provided in
this article.A foreign corporation may be authorized to do in this state any business which may be done lawfully
in this state by a domestic corporation, to the extent that it is authorized to do such business in the jurisdiction of
its incorporation, but no other business.
(b) Without excluding other activities which may not constitute doing business in this state, a foreign corporation
shall not be considered to be doing business in this state, for the purposes of this chapter, by reason of carrying
on in this stateany one or more of the following activities: (1) Maintaining or defending any action or
proceeding, whether judicial,administrative, arbitrative or otherwise, or effecting settlement thereof or the
settlement of claims or disputes. (2)Holding meetings of its directors or its shareholders. (3)Maintaining bank
accounts. (4) Maintaining offices or agencies only for the transfer, exchange and registration of its securities, or
appointing and maintaining trustees or depositaries with relation to its securities.
(c) The specification in paragraph (b) does not establish a standard for activities which may subject a foreign
corporation to service of process under this chapter or any other statute of this state.
(d) A foreign corporation whose corporate name is not acceptable for authorization pursuant to sections 301 and
302 of this chapter, may submit in its application for authority pursuant to section 1304 of this chapter, a fictitious
name under which it shall do business in this state. A fictitious name submitted pursuant to this section shall be
subject to the provisions of subparagraphs (2) through (9) of paragraph (a) of section 301 and 302 of this chapter.
A foreign corporation authorized to do business in this state under a fictitious name pursuant to this section, shall
use such fictitious name in all of its dealings with the secretary of state and in the conduct of its business in this
state.
The provisions of section one hundred thirty of the general business law shall not apply to any fictitious name filed
by a foreign corporation pursuant to this section, and a filing under section one hundred thirty of the general business
law shall not constitute the adoption of a fictitious name.
-9-
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when an out of state corporation registers to conduct business in New York,
you construe that as consent. It's consent to conduct business in New York.
Well, before Daimler doing business in New York was a basis for personal
jurisdiction. After Daimler, it's not, so I think you have to look at the law
on consent in that context.
Id. at p. 26.
Likewise, very recently, the Supreme Court, New York County in Mischel v. Safe Haven
Enters., LLC, applied Daimler, Goodyear and Brown to explain that a company’s registration to
do business in New York State does not constitute its consent to the general jurisdiction of New
York Courts. The Mischel Court offered the following discussion and recitation of law in New
York pre-Daimler and post-Daimler:
Prior to the Supreme Court ruling in Daimler AG v Bauman (134 S Ct 746
[2014]), the courts of this state held that a foreign corporation is deemed to have
consented to personal jurisdiction over it when it registers to do business in New
York and appoints the Secretary of State to receive proce
Preview
FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: In Re: New York City Asbestos Litigation ______________________________________________ Hon. Lucy Billings, J.S.C. SHIRLEY JO GODFREY, Individually and Index No. 190280/2015 as Executrix of the Estate of ROBERT C. GODFREY, deceased, Plaintiffs, -against- A.O. SMITH WATER PRODUCTS, et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF CERTAINTEED CORPORATION’S MOTION TO DISMISS Craig Blau, Esq. Mark I. Friesz, Esq. Jason F. Kaufman, Esq. DARGER ERRANTE YAVIZ & BLAU LLP 116 East 27 th Street at Park Avenue PP New York, NY 10016 212.452.5300 Counsel for CertainTeed Corporation 1 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 TABLE OF CONTENTS PRELIMINARY STATEMENT ..................................................................................................... 1 SUMMARY OF RELEVANT TESTIMONY & FACTS ................................................................ 1 ARGUMENT ................................................................................................................................. 2 I. CertainTeed Is Not Subject To The Jurisdiction Of New York Courts And This Case Should Therefore Be Dismissed Against Certainteed ............................................................... 2 A. CertainTeed Is Not Subject To Jurisdiction Under CPLR 301. .......................................... 3 B. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302. .......................................... 5 1. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(1) Or (a)(4) Because Plaintiffs’ Claims Do Not Arise From Any Of CertainTeed’s Contacts With New York. .......................................................................................... 6 2. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(2) Because It Did Not Commit A Tortious Act In New York. ....................................................... 7 3. CertainTeed Is Not Subject To Jurisdiction Under CPLR 302(a)(3) Because The Alleged Injury Did Not Occur In New York. ....................................................... 7 C. CertainTeed Is Not Subject To The General Jurisdiction Of New York Courts By Virtue Of Its Registration To Do Business In The State. .............................................. 8 CONCLUSION ............................................................................................................................ 17 -i- 2 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 TABLE OF AUTHORITIES Federal Cases Augsbury Corp. v. Petrokey Corp. 97 A.D. 2d 173, 175 (3d Dep't 1983) ............................................................................... 10, 13 Aybar v. Aybar 2016 WL 3389890, at *1 (Sup. Ct., Queens County 2016) ......................................... 11, 12, 13 Bagdon v. Philadelphia & Reading Coal & Iron Co. 217 NY 432, 436-37 [1916] ................................................................................................... 10 Bailen v. Air & Liquid Systems Corp. No. 190318/12, (Sup. Ct., New York County, August 05, 2014) (Heitler, J.).................... 11, 13 Barrett v. Union Pac. R.R. Co. No. S063914, 2017 WL 823860 (Or. Mar. 2, 2017) ............................................................... 15 Beach v. Citigroup Alt. Invs. LLC No. 12 Civ. 7717 (PKC), 2014 WL 904650, at *6 (S.D.N.Y. 2014) ................................. 11, 12 Benson v. Syntex Laboratories, Inc. 161 Misc. 2d 822, 614 N.Y.S.2d 990 (Sup. Ct. N.Y. Co. 1994) ................................................7 BNSF Ry. Co. v. Tyrell 137 S. Ct. 1549, 198 L.Ed.2d 36 (2017) ...................................................................................4 Bonkowski v. HP Hood LLC 2016 WL 4536868, at *2–4 (E.D.N.Y. Aug. 30, 2016)..................................................... 12, 13 Brown v. Lockheed Martin Corp. 814 F.3d 619 (2d Cir. 2016) ..........................................................................2, 4, 10, 12, 13, 14 Chatwal Hotels & Resorts LLC v. Dollywood 90 F. Supp. 3d 97 (S.D.N.Y. 2015) .................................................................................. 11, 13 Chong v. Healthtronics, Inc. 2007 U.S. Dist. LEXIS 45956 at *17, 2007 WL 1836831 (E.D.N.Y. June 20, 2007) .............. 13 Corporate Jet Support, Inc. v Lobosco Ins. Group, L.L.C. 2015 NY Slip Op 32438(U) (Sup. Ct., New York County, October 7, 2015) (Kern, J.) .......... 11 D & R Glob. Selections, S.L. v. Pineiro 128 A.D.3d 486, 487, 9 N.Y.S.3d 234 (1 st Dep’t 2015) ............................................................4 PP Daimler v. Bauman 134 S. Ct. 746 (2014).................................................................. 3, 9, 10, 11, 12, 13, 14, 15, 16 Davis v. Scottish Re Grp. Ltd. 46 Misc. 3d 1206(A), 9 N.Y.S.3d 592 (Sup. Ct. New York County 2014) ................................4 Display Works, LLC v. Bartley 182 F. Supp. 3d at 175 ........................................................................................................... 15 Doubet LLC v. Trustees of Columbia Univ. in the City of N.Y. 99 AD3d 433 [1st Dept 2012] ................................................................................................ 10 -i- 3 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 Famular v. Whirlpool Corp. No. 16 CV 944 (VB), 2017 WL 2470844, at *4 (S.D.N.Y. June 7, 2017) ............................... 12 Fantis Foods, Inc. v. Standard Importing 49 N.Y.2d 317 (1980) ..............................................................................................................7 Feathers v. McLucas 15 N.Y.2d 443, 261 N.Y.S.2d 8 (1965). ...................................................................................7 Figueroa v. BNSF Ry. Co. No. S063929, 2017 WL 822719 (Or. Mar. 2, 2017) ............................................................... 15 Genuine Parts Co. v. Cepec 137 A.3d 123, 126 (Del. 2016)............................................................................................... 15 Goodyear v. Dunlap Tires Operations, S.A. v. Brown 131 S. Ct. 2846 (2011) ....................................................................................... 3, 9, 10, 15, 16 Gucci America v. Weixing Li 768 F.3d 122 (2d Cir. 2014) ............................................................................................... 4, 11 Hardware v. Ardowork Corp. 117 A.D.3d 561986 N.Y.S. 2d 445, (1st Dep’t 2014) ...............................................................8 International Shoe Co. v. Washington 326 U.S. 310 (1945) ................................................................................................................2 Kramer v. Hotel Los Monteros S.A. 57 A.D.2d 756, 94 N.Y.S. 2d 415 (1st Dep't 1977)...................................................................7 Lamarca v. Pak Mor Mfg. Co. 95 N.Y.2d 210, 713 N.Y.S.2d 304 (2000) ................................................................................5 Lamarr v. Klein 315 N.Y.S.2d 695 (1970) .........................................................................................................2 Lancaster v. Colonial Motor Freight 177 AD 2d 152, 581 NYS 2d 283 (1st Dep’t 1992) ..................................................................7 Landoil Res. Corp. v. Alexander & Alexander Servs., Inc. 918 F.2d 1039 (2d Cir. 1990) ................................................................................................. 11 McGowan v. Smith 52 N.Y.2d 268, 437 N.Y.S.2d 643 (1981) ................................................................................6 Minholz v. Lockheed Martin Corp. 227 F.Supp.3d 249 (N.D.N.Y. 2016)...................................................................................... 14 Mischel v. Safe Haven Enters., LLC 2017 NY Slip Op 30774(U) at 4-5 ................................................................................... 10, 11 Muollo v. Crestwood Village, Inc. 155 AD2d 420 [2nd Dept 1989] ............................................................................................. 10 S.L. v. Bodega Olegario Falcon Pineiro 29 N.Y.3d 292, 78 N.E.3d 1172 (2017)....................................................................................4 S.L. v. Pineiro 128 A.D.3d 486, 9 N.Y.S.3d 234 (1 st Dep’t 2015) ...................................................................4 PP - ii - 4 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 Serov ex rel. Serova v. Kerzner Int'l Resorts, Inc. 52 Misc. 3d 1214(A), 43 N.Y.S.3d 769 (N.Y. Sup. Ct. 2016) ................................................. 11 Sonera Holding B.V. v Cukurova Holding A.S. 750 F.3d 221 (2d Cir. 2014) .....................................................................................................2 State ex rel. Norfolk S. Ry. v. Dolan No. SC95514, 2017 WL 770977, at *8 (Mo. Feb. 28, 2017)................................................... 15 Stewart v. Volkswagen of America 81 N.Y.2d 203, 597 N.Y.S.2d 612 (1993) ................................................................................2 Taormina v. Thrifty Car Rental No. 16-CV-3255 (VEC), 2016 WL 7392214, at *6–7 (S.D.N.Y. Dec. 21, 2016)................................................................................................. 11, 12 Trumbull v. Adience, Inc., et al. Index No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017) (Moulton, J.) ..................... 7, 8 Walden v. Fiore 134 S. Ct. 1115 (2014) .............................................................................................................6 Wilderness USA, Inc. v. Deangelo Bros., LLC 2017 WL 3635123 (W.D.N.Y. August 23, 2017) ............................................................. 11, 14 Cases Allan R. Stein, The Meaning of “Essentially At Home” in Goodyear Dunlop, 63 S.C.L.Rev. 527, 547-48 (2012) ......................................................................................... 16 Lee Scott Taylor, Registration Statutes, Personal Jurisdiction, and the Problem of Predictability 103 Colum. L. Rev. 1163 (2003) ..................................................................... 16 Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of Consent, 36 Cardozo L. Rev. 1343 (2015) ............................................................................. 16 Federal Statutes CPLR 301 ............................................................................................................................... 3, 4 CPLR 301(a) ...............................................................................................................................9 CPLR 302 ...................................................................................................................................5 CPLR 302(a) ................................................................................................................... 5, 6, 8, 9 CPLR 302(a)(1) ..........................................................................................................................6 CPLR 302(a)(2) ..........................................................................................................................7 CPLR 302(a)(3) ...................................................................................................................... 7, 8 CPLR 302(a)(4) ...................................................................................................................... 6, 7 Statutes N.Y. Bus. Corp. Law §1301 ........................................................................................ 1, 9, 14, 15 - iii - 5 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 PRELIMINARY STATEMENT Defendant CertainTeed Corporation (“CertainTeed”) submits this Memorandum of Law in support of its motion to dismiss the Complaint based on lack of personal jurisdiction, along with the affirmation of Mark I. Friesz, Esq. dated October 6, 2017 (“Friesz Aff”), and the exhibits attached thereto, including the affidavit of CertainTeed representative Michael T. Starczewski, sworn to September 22, 2017 (“Starczewski Aff.”), attached to the Friesz Aff. at Ex. 6. As fully set forth herein, CertainTeed’s motion should be granted because this Court lacks personal jurisdiction over CertainTeed in this case. SUMMARY OF RELEVANT TESTIMONY & FACTS Decedent Robert Godfrey (“Mr. Godfrey”) testified that from 1973 to 1978 he was a student attending and residing at Bradford College in Haverhill, Massachusetts. See Friesz Aff., Ex. 5, transcripts of Mr. Godfrey’s discovery deposition (“Godfrey Tr.”) at 26:13-24. Mr. Godfrey further testified that from 1974 to 1978, he worked as a member of Bradford College’s grounds crew, during which time he allegedly worked with a number of products that he believed contained asbestos, including CertainTeed siding shingles, which he allegedly installed on certain buildings on and around the Bradford College campus. Id. at 26:13-24; 33:16-34:6; 63:16-65:8; 81:21-24. Mr. Godfrey testified to encountering CertainTeed siding shingles only in the State of Massachusetts. See generally Ex. 5, Godfrey Tr. Mr. Godfrey has never alleged exposure to any CertainTeed product in the State of New York. CertainTeed is a Delaware corporation with its headquarters and principal place of business in Pennsylvania. See Friesz Aff. Ex. 6, Starczewski Aff at ¶ 6. CertainTeed is registered to do business in New York (Id. at ¶ 10) pursuant to N.Y. Bus. Corp. Law §1301. CertainTeed manufactured asbestos-cement siding shingles for one or two years during the 1920s. CertainTeed 6 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 has not manufactured siding shingles since the 1920s. See id. at ¶ 14. During certain years after the 1920s, CertainTeed purchased asbestos-cement siding shingles from other companies and relabeled them for resale under CertainTeed's name. See id. at ¶ 15. Specifically with respect to customers on the east coast, from the early 1950s until approximately 1975, CertainTeed resold asbestos-cement siding shingles that were manufactured by the National Gypsum Company. National Gypsum Company, in turn, manufactured asbestos cement siding shingles at plants in Louisiana, Missouri and New Jersey. See id. at ¶ 16. At all times relevant to this case, CertainTeed did not sell any asbestos cement siding shingles which were manufactured in the State of New York. See id. at ¶ 17. ARGUMENT I. CERTAINTEED IS NOT SUBJECT TO THE JURISDICTION OF NEW YORK COURTS AND THIS CASE SHOULD THEREFORE BE DISMISSED AGAINST CERTAINTEED Plaintiffs must establish that the Court has jurisdiction over CertainTeed in this action. Stewart v. Volkswagen of America, 81 N.Y.2d 203, 207, 597 N.Y.S.2d 612, 615 (1993); Lamarr v. Klein, 315 N.Y.S.2d 695, 697 (1970). Specifically, Plaintiffs must establish that (i) New York law confers jurisdiction over CertainTeed, and (ii) the exercise of jurisdiction over CertainTeed comports with the Due Process Clause of the United States Constitution, which requires that any exercise of jurisdiction be consistent with “traditional notions of fair play and substantial justice.” 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). Plaintiffs cannot satisfy this burden; their claims against CertainTeed have nothing to do with the state of New York. CertainTeed is a Delaware corporation with its corporate headquarters -2- 7 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 and principal place of business in Pennsylvania. Plaintiffs’ claims against CertainTeed arise from alleged exposure to CertainTeed cement siding shingles at Bradford College in Haverhill, Massachusetts over forty years ago. On these facts, New York law does not confer jurisdiction over CertainTeed. Even if New York law conferred jurisdiction over CertainTeed in this case, exercising jurisdiction over CertainTeed would violate its due process rights guaranteed by the U.S. Constitution. A. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER CPLR 301. CPLR 301, which states that, “[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore,” was long understood to permit the exercise of general, all-purpose, jurisdiction over foreign entities that were deemed “present” in New York by virtue of their continuous business activity here. On the basis of such continuous activity, a non-domiciliary could be sued in New York whether or not the claims related to or arose out of any New York activity. The U.S. Supreme Court eradicated such wide-reaching general jurisdiction in Goodyear v. Dunlap Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011), and Daimler v. Bauman, 134 S. Ct. 746, 761-62 (2014). In Daimler, the Court held that, absent “exceptional circumstances,” the Due Process Clause of the Fourteenth Amendment precludes a state from exercising general jurisdiction over foreign corporations that are neither incorporated in, nor have their principal places of business in, that state. 134 S. Ct. at 761. For a corporation, the “paradigm forum for the exercise of general jurisdiction” is where the corporation “is fairly regarded as at home,” Goodyear, 131 S. Ct. 2853-54, which is the corporation’s place of incorporation and principal place of business. Daimler, 134 S. Ct. at 760-61. Indeed, just months ago, the Supreme Court reaffirmed its holdings in Daimler, explaining that, “[o]ur precedent, however, explains that -3- 8 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when the corporation is not ‘at home’ in the State and the episode-in- suit occurred elsewhere.” BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1554, 198 L.Ed.2d 36 (2017). The BNSF Court likewise reiterated that “the ‘paradigm’ forums in which a corporate defendant is ‘at home’…are the corporation's place of incorporation and its principal place of business.” Id. at 1558. Thus, under the Supreme Court’s binding interpretation of the Due Process Clause, New York courts may not exercise general jurisdiction pursuant to CPLR 301 over a defendant that is neither incorporated in New York State nor has its principal place of business here. D & R Glob. Selections, S.L. v. Pineiro, 128 A.D.3d 486, 487, 9 N.Y.S.3d 234 (1 st Dep’t 2015), rev'd on other PP grounds, D &R Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 78 N.E.3d 1172 (2017). 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 amenable to general (all purpose) 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 many years, derived substantial revenue from Connecticut-based operations, and is registered to do business in Connecticut, exercise of general jurisdiction over Lockheed Martin in Connecticut 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 branches and employees in New York not subject to the general jurisdiction of New York courts). Since CertainTeed is not “at home” in New York, it is not subject to the general jurisdiction of New York courts under CPLR 301. -4- 9 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 B. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER CPLR 302. The United States Supreme Court has concretely held that, “[i]n order for a court to exercise specific jurisdiction over a claim, there must be an ‘affiliation between the forum and underlying controversy, principally [an] activity or an occurrence that takes place in the forum State’. When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.” Bristol-Meyers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, 198 L.ED.2d 395 (2017). In this vein, CPLR 302(a), New York’s long-arm statue, confers jurisdiction over a non-domiciliary for claims that arise out of: (1) business activity in New York; or (2) a tortious act committed in New York; or (3) a tortious act committed outside New York that causes injury to person or property in New York (except for defamation), if the non-domiciliary (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or (4) real property situated within the state. Whether a court can properly assert long-arm jurisdiction under CPLR 302(a) hinges on a two-part inquiry: (1) do the facts of the case fall within 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? Lamarca v. Pak Mor Mfg. Co., 95 N.Y.2d 210, 213-14, 713 N.Y.S.2d 304 (2000). Here, none of the provisions of CPLR 302 subject CertainTeed to the -5- 10 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 jurisdiction of the Court and, in any event, exercising jurisdiction over CertainTeed would violate its due process rights. 1 PP 1. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER CPLR 302(A)(1) OR (A)(4) BECAUSE PLAINTIFFS’ CLAIMS DO NOT ARISE FROM ANY OF CERTAINTEED’S CONTACTS WITH NEW YORK. Plaintiffs’ claims against CertainTeed do not “arise from” any activity by CertainTeed in New York or any CertainTeed real property in New York. Plaintiffs claim instead that over forty years ago, Mr. Godfrey was exposed to asbestos from CertainTeed cement siding shingles in Haverhill, Massachusetts while working on Bradford College’s grounds crew from 1974 to 1978. See Friesz Aff., Ex. 5, Godfrey Tr. at 33:16-34:6. At all times relevant to this case, CertainTeed, a Delaware corporation with a principal place of business in Malvern, Pennsylvania, did not sell any asbestos-cement siding shingles manufactured in New York. See Friesz Aff. at Ex. 6, Starczewski Aff. ¶¶ 6; 17. The Court of Appeals held long ago that in a tort action for personal injuries, CPLR 302(a) does not confer jurisdiction where plaintiff’s injury occurred outside New York and did not arise from an act or activity in New York. McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 645 (1981) (“[e]ssential to the maintenance of a suit against a nondomiciliary under CPLR 302 (subd [a], par 1) is the existence of some articulable nexus between the business transacted and the cause of action sued upon …”). Indeed, this Court recently decided that personal jurisdiction under CPLR 302(a)(1) was lacking with respect to a similarly situated defendant, likewise incorporated in Delaware with an out-of-state principal place of business, to whose 1 See Walden v. Fiore, 134 S. Ct. 1115 (2014) (“the inquiry whether a forum state may assert specific jurisdiction over a nonresident defendant ‘focuses on the relationship among the defendant, the forum, and the litigation.’ For a State to exercise jurisdictionconsistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State”) (citations omitted). -6- 11 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 product plaintiff encountered only outside of New York. Trumbull v. Adience, Inc., et al., Index No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017) (Moulton, J.) (Friesz Aff. Ex. 7). Finally, CPLR 302(a)(4) likewise is inapplicable because Plaintiffs’ claims do not arise from any property CertainTeed may own in New York. Lancaster v. Colonial Motor Freight, 177 AD 2d 152, 581 NYS 2d 283 (1st Dep’t 1992). 2. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER CPLR 302(A)(2) BECAUSE IT DID NOT COMMIT A TORTIOUS ACT IN NEW YORK. The “tortious act” referred to in CPLR 302(a)(2) is the manufacture of the allegedly injurious product. Feathers v. McLucas, 15 N.Y.2d 443. 261 N.Y.S.2d 8 (1965). As noted, at all times relevant to this case, CertainTeed did not sell any asbestos cement siding shingles manufactured in New York. See Friesz Aff. Ex. 6, Starczewski Aff, at ¶¶ 14-17. Thus, CertainTeed did not commit a tortious act in New York. Id. at ¶¶ 14-15. In fact, even if it could be said that in a product exposure case, the tortious act occurs where the alleged exposure occurred, here the proper venue would be Massachusetts. This Court has recently made clear that no jurisdiction exists under CPLR 302(a)(2) where plaintiff alleges exposure to defendant’s product “entirely outside of New York.” Trumbull, 190084/2016 (March 6, 2017) (Moulton, J.) (Friesz Aff. Ex. 7) at p. 9. CPLR 302(a)(2) does not confer jurisdiction over CertainTeed. 3. CERTAINTEED IS NOT SUBJECT TO JURISDICTION UNDER CPLR 302(A)(3) BECAUSE THE ALLEGED INJURY DID NOT OCCUR IN NEW YORK. To exercise jurisdiction under CPLR 302(a)(3), there has to be a tort committed outside New York that injured plaintiff in New York. See Benson v. Syntex Laboratories, Inc., 161 Misc. 2d 822, 614 N.Y.S.2d 990 (Sup. Ct. N.Y. Co. 1994) citing Fantis Foods, Inc. v. Standard Importing, 49 N.Y.2d 317, 325 (1980). The place of injury is where the alleged exposure occurred. See Kramer v. Hotel Los Monteros S.A., 57 A.D.2d 756, 94 N.Y.S. 2d 415 (1st Dep't 1977) (where -7- 12 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 tourist from New York was bitten by dog in hotel in Spain and developed septicemia back in New York, hotel was not subject to jurisdiction of New York courts under CPLR 302(a)(3); “the injury . . . occurred in Spain even though its most severe medical result . . . did not manifest itself until the plaintiff . . . returned to New York”); Hardware v. Ardowork Corp., 117 A.D.3d 561986 N.Y.S. 2d 445, (1st Dep’t 2014) (where child, domiciled and living in New York, was exposed to lead paint in Connecticut, situs of the injury was Connecticut; thus, defendant Connecticut property owner was not subject to jurisdiction in New York under CPLR 302(a)(3)). Assuming, strictly for the sake of argument, that CertainTeed committed a tortious act against Plaintiffs somewhere outside of New York, under New York law, Mr. Godfrey’s alleged injury from CertainTeed siding shingles occurred in Massachusetts—the place of his alleged exposure. Indeed, this Court’s recent P P decision in the Trumbull case makes further clear that Mr. Godfrey’s alleged exposure to asbestos-containing siding shingles in Massachusetts does not constitute an “injury to person or property within the state.” Trumbull, 190084/2016 (March 6, 2017) (Moulton, J.) (Friesz Aff. Ex. 7) at p. 10. CPLR 302(a)(3) does not confer jurisdiction over CertainTeed. In sum, CertainTeed is not subject to the jurisdiction of the Court under CPLR 302(a). C. CERTAINTEED IS NOT SUBJECT TO THE GENERAL JURISDICTION OF NEW YORK COURTS BY VIRTUE OF ITS REGISTRATION TO DO BUSINESS IN THE STATE. This case involves a Delaware corporate defendant headquartered in Pennsylvania (CertainTeed), and alleged tortious conduct in Massachusetts. A litany of recent New York decisions, discussed infra, have made clear that this case cannot—consistent with the Due Process Clause—be pursued against CertainTeed in a New York court, regardless of CertainTeed’s registration to do business in the state. -8- 13 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 CertainTeed is registered to do business in New York under N.Y. Bus. Corp. Law §1301. This statute, which is set out in full in the margin, contains no express language stating that registration to do business constitutes consent to the general jurisdiction of the New York courts. 2 PP Whatever the law may have been prior to Daimler and Goodyear, those decisions and other cases decided after them make plain that CertainTeed’s New York registration is not by itself sufficient to confer general jurisdiction over the company. This Court, in a decision issued just weeks ago, held that a foreign corporation does not consent to the jurisdiction of New York’s Courts merely by merely registering to do business here. Sean Snowdale et al. v. A.O . Smith Water Products et al., Index No. 190202/2015 (Sup. Ct. New York County September 7, 2017) (Billings, J.) (Friesz Aff. Ex 8). As Your Honor explained in Snowdale: 2 New York Bus. Corp. Law §1301, entitled “Authorization of foreign corporations,” states: (a) A foreign corporation shall not do business in this state until it has been authorized to do so as provided in this article.A foreign corporation may be authorized to do in this state any business which may be done lawfully in this state by a domestic corporation, to the extent that it is authorized to do such business in the jurisdiction of its incorporation, but no other business. (b) Without excluding other activities which may not constitute doing business in this state, a foreign corporation shall not be considered to be doing business in this state, for the purposes of this chapter, by reason of carrying on in this stateany one or more of the following activities: (1) Maintaining or defending any action or proceeding, whether judicial,administrative, arbitrative or otherwise, or effecting settlement thereof or the settlement of claims or disputes. (2)Holding meetings of its directors or its shareholders. (3)Maintaining bank accounts. (4) Maintaining offices or agencies only for the transfer, exchange and registration of its securities, or appointing and maintaining trustees or depositaries with relation to its securities. (c) The specification in paragraph (b) does not establish a standard for activities which may subject a foreign corporation to service of process under this chapter or any other statute of this state. (d) A foreign corporation whose corporate name is not acceptable for authorization pursuant to sections 301 and 302 of this chapter, may submit in its application for authority pursuant to section 1304 of this chapter, a fictitious name under which it shall do business in this state. A fictitious name submitted pursuant to this section shall be subject to the provisions of subparagraphs (2) through (9) of paragraph (a) of section 301 and 302 of this chapter. A foreign corporation authorized to do business in this state under a fictitious name pursuant to this section, shall use such fictitious name in all of its dealings with the secretary of state and in the conduct of its business in this state. The provisions of section one hundred thirty of the general business law shall not apply to any fictitious name filed by a foreign corporation pursuant to this section, and a filing under section one hundred thirty of the general business law shall not constitute the adoption of a fictitious name. -9- 14 of 22 FILED: NEW YORK COUNTY CLERK 10/06/2017 04:09 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 10/06/2017 when an out of state corporation registers to conduct business in New York, you construe that as consent. It's consent to conduct business in New York. Well, before Daimler doing business in New York was a basis for personal jurisdiction. After Daimler, it's not, so I think you have to look at the law on consent in that context. Id. at p. 26. Likewise, very recently, the Supreme Court, New York County in Mischel v. Safe Haven Enters., LLC, applied Daimler, Goodyear and Brown to explain that a company’s registration to do business in New York State does not constitute its consent to the general jurisdiction of New York Courts. The Mischel Court offered the following discussion and recitation of law in New York pre-Daimler and post-Daimler: Prior to the Supreme Court ruling in Daimler AG v Bauman (134 S Ct 746 [2014]), the courts of this state held that a foreign corporation is deemed to have consented to personal jurisdiction over it when it registers to do business in New York and appoints the Secretary of State to receive proce