Motion-Secondary: Karen G. Wysong, Lowell Wysong v. Aerco International, Inc., Air & Liquid Corporation, As Successor-By-Merger To Buffalo Pumps, Inc., Atwood & Morrill Company, Aurora Pump Company, Bmce Inc., F/K/A United Centrifugal Pump, Borg Warner Morse Tec Llc, Cbs Corporation F/K/A Viacom Inc., Successor By Merger To Cbs Corporation F/K/A Westinghouse Electric Corporation, Crane Co., Electrolux Home Products, Inc., Individually, And As Successor To Tappan And Copes Vulcan, Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valve, Inc., And Nordstrom Valves, Inc., Fmc Corporation, Individually, And As Successor To Chicago Pump Company, Northern Pump Company, And Peerless Pump Company, Fort Kent Holdings, Inc., F/K/A Dunham-Bush, Inc., Foster Wheeler L.L.C., Gardner Denver, Inc., General Dynamics Corporation, Individually And As Successor In Interest To Bath Iron Works, General Electric Company, Goulds Pumps, Inc., Grinnell Llc, Honeywell International, Inc., F/K/A Allied Signal, Inc./ Bendix, Hopeman Brothers, Inc., Imo Industries, Inc., Ingersoll-Rand Company, International Paper Company, Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett, Kennedy Valve Mfg. Co. Inc., And Hoffman Specialty, Johnson & Johnson, Inc., Johnson & Johnson Consumer, Inc., Minnesota Mining & Manufacturing Company, A/K/A 3m Company, Nash Engineering Company (The), Spirax Sarco, Inc., Trane U.S. Inc., F/K/A American Standard, Inc., Union Carbide Corporation, Velan Valve Corporation, Warren Pumps Llc, Zurn Industries, Inc., Individually And As Successor In Interest To Erie City Iron Works, Bath Iron Works Corporation

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                                FILED:         NEW     YORK       COUNTY        CLERK        06/15/2020             07:32        PM                 INDEX    NO.   190069/2020
   NYSCEF     DOC.   NO.   67                                                                                 RECEIVED      NYSCEF:     06/15/2020




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF NEW YORK
                  ------------------------------------------------------------------------X        Index No.: 190069/2020
                  KAREN G. WYSONG and LOWELL WYSONG,

                                                                        Plaintiffs,

                                             -against-

                  AERCO INTERNATIONAL, INC., et al.,

                                                                        Defendants.
                  ------------------------------------------------------------------------X




                                                          MEMORANDUM OF LAW




                                                               GORDON & REES SCULLY MANSUKHANI, LLP

                                                               Erik C. DiMarco
                                                               Attorneys for Defendant
                                                               BATH IRON WORKS CORPORATION
                                                               One Battery Park Plaza, 28th Floor
                                                               New York, New York 10004
                                                               T: 212-453-0772
                                                               E: edimarco@grsm.com




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                                                        PRELIMINARY STATEMENT

                           Plaintiffs commenced this action, alleging that plaintiff Karen Wysong was injured as                      a

                  result of her exposure to asbestos-containing products and materials.              Plaintiffs alleged that Karen

                  Wysong was secondarily exposed to asbestos through the work of her father, who was employed

                  at the Bath Iron Works Corporation (hereinafter, “BIW”) facility in Bath, Maine from 1952-1966.

                  Plaintiffs  alleged   that  plaintiff  Karen    Wysong’s      exposure    to  asbestos   caused    her  to develop

                  mesothelioma.      Based on plaintiff Karen Wysong’s discovery deposition testimony, it is evident

                  that  all the alleged   exposure    to asbestos-containing      products    and  materials   allegedly   present   at

                  BIW took place wholly in the State of Maine.

                           Additionally,    the  affidavit  of  Daniel   J. Ferguson,    Director,   Risk   Management       of BIW,

                  states that BIW is a Maine corporation with its principal place of business in Maine.                 See Exhibit

                  C  at  ¶¶6-7.   BIW    is neither   registered   to do  business    in New    York,   has  not  owned,    rented  or

                  possessed any real property situated in New York, and has no relevant contacts with New York.

                  Id. at ¶¶8-16.

                           Because the exposure alleged herein with regard to this defendant occurred outside of New

                  York and BIW is not incorporated in New York, does not have its principal place of business here,

                  and does not maintain relevant contacts with this State, this Court lacks personal jurisdiction over

                  BIW.     Accordingly, this Court should grant the within motion and dismiss the Complaint in its

                  entirety.

                           Prior  to  filing the  instant  motion,   counsel    for BIW    met   and  conferred    with  counsel    for

                  plaintiffs.    Counsel for plaintiffs do not oppose BIW’s motion to dismiss all claims and cross-

                  claims against BIW in this matter based upon lack of personal jurisdiction.




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                                                                    ARGUMENT

                                   THIS COURT DOES NOT HAVE JURISDICTION OVER BIW

                            It is fundamental that a court must acquire personal jurisdiction over a defendant before it

                  can render a judgment against that defendant.            See Burnham v Superior Court of Cal., County of

                  Marin,   495   U.S.  604,  608,   110  S.  Ct. 2105,   109  L.  Ed.  2d  631   (U.S.  1990).    A  defendant    may

                  consent to a court's exercise of personal jurisdiction or waive the right to object to it.              See CPLR

                  § 3211(e); Aybar v Aybar, 2019 N.Y. App. Div. LEXIS 444, *8, 2019 NY Slip Op 00412, 3, 2019

                  WL 288307 (2d Dept. 2019).           However, when a defendant has objected to the court's exercise of

                  personal jurisdiction, the plaintiff bears the burden of coming forward with sufficient evidence to

                  prove jurisdiction.     Id.

                            Under    modern     jurisprudence,    a  court   may    assert  general   all-purpose    jurisdiction   or

                  specific conduct-linked jurisdiction over a particular defendant.            See Daimler AG v. Bauman, 571

                  U.S. 117, 122, 134 S. Ct. 746, 751 (U.S. 2014); Goodyear Dunlop Tires Operations, S.A. v. Brown,

                  564 U.S. 915, 915, 131 S. Ct. 2846, 2848 (U.S. 2011).            In this regard, once the defendant challenges

                  jurisdiction, a plaintiff “must allege jurisdictional contacts which, if proven, would be sufficient

                  to demonstrate that the exercise of personal jurisdiction is proper under either New York’s general

                  jurisdiction statute CPLR § 301 or New York’s long-arm statute CPLR § 302, and that the exercise

                  of jurisdiction comports with the constitutional limits of due process.”            NextEngine Ventures, LLC

                  v. Network Solutions, LLC, 2017 NY Slip Op 32145(U), **3 (Sup. Ct. N.Y. Cnty. 2017) (citing

                  LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 213, 735 N.E.2d 883, 885 (NY 2000).




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                           A.       BIW Is Not Subject to General Jurisdiction in New York.

                           This Court cannot exercise general jurisdiction over BIW pursuant to CPLR § 301 because

                  it is not incorporated in New York and does not have its principal place of business or headquarters

                  in New York.      While the principle of general jurisdiction has been codified in CPLR § 301, insofar

                  as “[a] court may exercise such jurisdiction over persons, property or status as might have been

                  executed heretofore,” it is the decision of the Supreme Court of the United States in Daimler AG

                  v. Bauman, supra, 137 S. Ct. 746 (2014) that provides the analytical framework for finding general

                  jurisdiction over a foreign defendant.

                           In  Daimler,   the  Supreme     Court   unambiguously limited        the reach   of general   jurisdiction

                  that  states may    assert  over  nonresident    defendants.     The   Court   defined   the paradigm     bases   for

                  general jurisdiction as the corporation’s “place of incorporation and principal place of business.”

                  Id. at 760 (internal citations omitted).     The Supreme Court further clarified that general jurisdiction

                  is otherwise constitutionally proper only when a corporation’s “affiliations with the State are so

                  continuous and systematic as to render [it] essentially at home in the forum state.”                Id. at 755.

                           In BNSF Railway Co., the United States Supreme Court reaffirmed Daimler’s holding 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.”           BNSF Ry. v. Tyrrell, 137 S. Ct. 1549, 1551,

                  198   L.  Ed.  2d  36,   36  (U.S.   2017).    New    York   courts   have   similarly   applied   Daimler    when

                  interpreting CPLR § 301.        See D & R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro,

                  128 A.D. 3d 486, 487 (1st Dept. 2015) (noting that “[a]s defendant neither is incorporated in New

                  York    State  nor  has   its principal   place   of business    here,  New    York    courts  may    not  exercise

                  jurisdiction over it under CPLR § 301”); Magdalena v. Lins, 123 A.D.3d 600, 601, 999 N.Y.S.2d

                  44,45 (1st Dept. 2014) (noting that “there is no basis for general jurisdiction pursuant to CPLR




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                  301, since [defendant] is not incorporated in New York and does not have its principal place of

                  business in New York.”).

                           BIW is a shipyard located in Bath, Maine that builds ships for the United States Navy.                  See

                  Exhibit C at ¶4.     BIW is a Maine corporation with its principal place of business in Maine.                 Id. at

                  ¶¶6-7.    BIW    is  not  and   has  never   been   registered   to  do  business    in  New    York.    Id.  at ¶8.

                  Accordingly, BIW is at home in Maine and, thus this Court does not have personal jurisdiction

                  over it under CPLR § 301.

                           B.       BIW Is Not Subject to Specific Jurisdiction in New York.

                           The   United   States  Supreme     Court   has  provided    guidance    that “[i]n  order  for  a court   to

                  exercise specific jurisdiction over a claim there must be an affiliation between the forum and the

                  underlying controversy,       principally, [an]   activity or an occurrence that takes place in the forum

                  State.”    Bristol-Myers     Squibb,    supra,   173   S.Ct.  1773.     As  such,   “[w]here    there   is no   such

                  connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected

                  activities in the State.”    Id.

                           Under CPLR § 302(a), the court may exercise specific jurisdiction over a non-domiciliary

                  defendant if, and only if, the defendant:

                       1.   transacts  any business     within  the  state or  contracts   anywhere    to  supply goods     or
                            services in the state; or

                       2.   commits a tortious act within the state, except as to a cause of action for defamation
                            of character arising from the act; or

                       3.   commits a tortious act without the state causing injury to person or property within
                            the state, except as to a cause of action for defamation of character arising from the
                            act, if he:

                           (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




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                                    state  and   derives    substantial    revenue    from    interstate  or   international
                                    commerce; or

                       4.   owns, uses or possesses any real property situated within the state.

                           The Court of Appeals has made clear that jurisdiction under CPLR § 302(a)(1) is proper

                  only   if “the  defendant's    activities  here  were   purposeful    and   there  is a  substantial   relationship

                  between the transaction       and the claim asserted.”       Fischbarg v. Doucet, 9       N.Y.3d 375, 380, 880

                  N.E.2d 22, 26, 849 N.Y.S.2d 501, 505 (NY 2007).              In other words, “to determine whether personal

                  jurisdiction   exists  under   CPLR    §  302(a)(1),   a 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.”    Abad v Lorenzo, 163 A.D.3d 903, 905, 82 N.Y.S.3d 486, 488 (2d Dept. 2018).

                           Here, the facts are insufficient to subject BIW to specific jurisdiction under any of the four

                  bases enumerated in CPLR § 302.             The Complaint sets forth only generic allegations that BIW

                  does business in New York.          However, as outlined in Mr. Ferguson’s affidavit, BIW has not and

                  has never been registered to do business in New York.             See Exhibit C at ¶8.      All of the officers of

                  BIW reside in Maine.        Id. at ¶9.  BIW does not sell or distribute goods to New York residents or

                  New York Corporations.         Id. at ¶10.  BIW does not now nor has it ever owned, rented, or possessed

                  any real property situated in New York.          Id. at ¶11.  BIW does not and has not maintained offices,

                  manufacturing plants, distribution facilities, or any other types of facilities in New York.                   Id. at

                  ¶12.   BIW does not maintain any bank accounts in New York or pay income or property taxes in

                  New York.      Id. at ¶¶13-14.     BIW does not employ a sales agent in New York and does not have

                  any sales or marketing offices in New York.            Id. at ¶15.

                           Since all of plaintiff’s alleged exposure with regard to this defendant occurred outside of

                  New    York   and   BIW   does   not  have   any  relevant   contacts   with  New    York,   there  is  no  specific

                  jurisdiction over BIW under CPLR § 302.




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                           C.       New York’s Long-Arm Statute Does Not Provide a Basis to Exercise Specific
                                    Jurisdiction Over BIW.

                           Under    CPLR    §  302   (a)(1),  the  courts  of  this State   are authorized    to  exercise   personal

                  jurisdiction over a non-domiciliary if the cause of action at issue arose out of the transaction of

                  business within the State.       McGowan v. Smith, 52 N.Y.2d 268, 271-272, 419 N.E.2d 321, 322-

                  323, 437 N.Y.S.2d 643, 644-645 (N.Y. 1981).             There must have been some “purposeful activities”

                  within the State that would justify bringing the           nondomiciliary defendant before the          New York

                  courts.   Id.  As the cause of action at issue here         did not arise out of the transaction of business

                  within the State of New York, CPLR § 302 (a)(1) cannot apply to confer personal jurisdiction upon

                  BIW.    See Exhibits A and B.

                           Under    CPLR    §  302   (a)(2),  the  courts  of  this State   are authorized    to  exercise   personal

                  jurisdiction   over  a  non-domiciliary     who   commits     a tort in  New   York.   To   establish  jurisdiction

                  under this statute, a plaintiff must allege facts demonstrating that the defendant’s acts occurred in

                  New York and that the acts attributable to the defendant gave rise to the claim of tort.                There is no

                  evidence that a tort occurred in New York.          Neither BIW nor plaintiffs are residents of New York.

                  See  Exhibit    C  at  ¶¶4-9,  and   Exhibit   D.   As   such,  CPLR     § 302   (a)(2)  cannot   apply   to confer

                  personal jurisdiction upon BIW.

                           Under    CPLR     § 302(a)(3),    the  courts  of  this  State  are  authorized    to  exercise   personal

                  jurisdiction over a non-domiciliary defendant who commits a tort outside of the State of New York

                  if he: 1) 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 New York;

                  or 2) expects or should reasonably expect the act to have consequences in New York and derives

                  substantial revenue from interstate or international commerce.




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                           As   a Maine    corporation    with   its principal   place   of business    in  Maine,   BIW    does   not

                  regularly do or solicit business, nor engage in any other persistent course of conduct, nor derive

                  substantial revenue from goods used or consumed or services rendered in New York. Neither does

                  BIW expect, nor should it reasonably expect, that its acts will have consequences in New York.

                  See Exhibit C at ¶¶12-15 and Exhibit D.             Therefore, CPLR § 302 (a)(3) cannot apply to confer

                  personal jurisdiction upon BIW.

                           Finally, under CPLR § 302 (a)(4), courts of this state are authorized to exercise personal

                  jurisdiction   over  a  non-domicilliary     defendant    who    owns,   uses  or  possesses    any  real  property

                  situated within the state.     BIW does not now, nor has it ever, owned, used, or possessed any real

                  property situated within the State of New York.              See Exhibit C at ¶11.        As such, CPLR § 302

                  (a)(4) cannot apply to confer personal jurisdiction upon BIW.

                           D.       Imposing this Court’s Jurisdiction Over BIW Will Violate Said Defendant’s
                                    Rights to Due Process.

                           Assuming     arguendo     that  BIW’s    “relationship   with   New    York   falls within   the  terms   of

                  CPLR § 302, the court [must] then determine whether the exercise of jurisdiction comports with

                  due process.” LaMarca v. Pak-Mor Mfg. Co., supra, 95 N.Y.2d at 213.

                           To comport with Due Process, “[t]here must also be proof that the out-of-state defendant

                  has the requisite minimum contacts with the forum state and that the prospect of defending a suit

                  here comports with traditional notions of fair play and substantial justice.”             Penguin Group [USA]

                  Inc.  v American     Buddha,    16  NY3d    295,   302, 946   N.E.2d    159,  921   N.Y.S.2d    171  (N.Y.   2011).

                  The   "minimum      contacts"   requirement    is satisfied  where    "a defendant's    conduct   and   connection

                  with the forum State are such that it should reasonably anticipate being haled into court there.”

                  LaMarca, supra 95 N.Y.2d at 216.            To such extent, a court must        inquire whether the defendant

                  “purposefully avails      itself of the  privilege   of conducting     activities within   the  forum   State”   and




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                  "expressly aimed" its conduct at the forum.          Deutsche Bank AG v Vik, 163 A.D.3d 414, 415-416,

                  2018 N.Y. App. Div. LEXIS 4878 (1st Dept. 2018).

                           Considering that BIW is not registered to do business in New York, has not owned, rented

                  or possessed any real property situated in New York, and does not maintain any relevant contacts

                  with   New    York,   said  defendant    could   not  reasonably     anticipate   being   haled   into  court  here.

                  Neither   could   BIW   be  said to have “purposefully avail[ed]         itself of the   privilege  of  conducting

                  activities” in New York.       See Exhibits C and D.        As such, requiring BIW to litigate this action in

                  New York will be a violation of said defendant’s rights to Due Process.



                                                                  CONCLUSION

                           Accordingly, BIW respectfully requests that the Court grant its motion in its entirety and

                  enter an Order dismissing Plaintiffs’ complaint and any and all cross-claims asserted against BIW

                  in their entirety based upon lack of personal jurisdiction, and further grant such other relief as the

                  Court deems proper.

                  Dated:   June 15, 2020
                           New York, NY



                                                               GORDON REES SCULLY MANSUKHANI, LLP


                                                               _____________________________
                                                               Erik C. DiMarco
                                                               Attorneys for Defendant
                                                               BATH IRON WORKS CORPORATION
                                                               One Battery Park Plaza, 28th Floor
                                                               New York, New York 10004
                                                               T: 212-453-0772
                                                               E: edimarco@grsm.com




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