On August 15, 2018 a Motion,Ex Parte was filed involving a dispute between Glenda Conaway, Glenda Conaway, As Administratrix Of The Estate Of Preston Conaway Jr., Deceased,, and Abb, Inc., Formerly Known As Brown Boveri, Air & Liquid Systems Corporation, As Successor By Merger To Buffalo Pumps, Inc., Alfa Laval, Inc., Allen-Bradley Company, Inc., Individually And As Successor To Rostone, American Biltrite, Inc., Individually And Successor To Amtico Floors, Amtek, Inc., Successor-In-Interest To Haveg Industries, Inc., Successor-In-Interest To Hercules, Inc., Successor-In-Interest To Plymouth Industrial Products, Inc., Amtrol, Inc., Individually And As Successor To Thrush Products, Inc., Armstrong International, Inc., Atwood & Morrill Co., Inc. D B A Weir Valves & Controls Usa Inc., Aurora Pump Company, Belden Wire & Cable Co., Bird Incorporated F K A Bird & Son, Inc., Borgwarner Morse Tec Llc, Burnham Corporation, 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, Champlain Cable Corporation, Cleaver-Brooks Company F K A Aqua-Chem, Inc., Cooper Bussmann, A Division Of Cooper Industries, Cooper Cameron Corporation, Individually And As Successor To Pennsylvania Pump & Compressor Company And Cooper Bessemer And Grove Reducer Valves, Cooper Industries, Inc., Individually And As Successor To Crouse Hinds Hospital, Eaton Corporation, Individually And Now Known As Eaton Electrical, Inc. And As Successor To The Vickers Pump Company And Cutler-Hammer, Inc. And Waterbury Pump, Electrolux Home Products, Inc., Individually And As Successor To Tappan And Copes-Vulcan, Elliott Turbomachinery Co., Inc., Falk Corporation, 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, Gardner Denver, Inc., General Cable Corporation F K A General G.K Industries, Inc. N K A General Cable Corp., General Electric Company, General Supply & Services, Inc. D B A Gexpro, Gg Of Florida Inc. F K A Higbee, Inc., Gould Electronics, Inc., Individually And As Successor-In-Interest To I-T-E Imperial Corporation And I-T-E Circuit Breaker Company, Goulds Pumps, Inc., Graybar Electric Company, Inc., Grinnell Corporation, Gte Sylvania Incorporated, Heico Holdings, Inc., Individually And As Successor To Ohmite Manufacturing Company, Hercules Llc, Individually And As Successor To Haveg, Hercules, 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, Hubbell Incorporated, I.T.T. Industries, Inc., Individually And As Successor To Bell & Gossett, Lightolier Incorporated, Lithonia Lighting, Inc., An Acuity Brands Company, Littelfuse, Inc., Marathon Special Products, Metropolitan Life Insurance Co., Nash Engineering Company, Occidental Chemical Corporation, Individually And As Successor To Durez Corporation, Ohmite Manufacturing Company, Okonite Company, Osram Sylvania, Inc., O-Z Gedney Company Llc, Plastics Engineering Company, Individually And As Successor To Plenco, Progress Lighting, 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, Roper Industries, Inc., A Florida Corporation, Sargent & Lundy Llc, Schneider Electric Usa, Inc. Formerly Known As Square D Company, Siemens Corporation, Individually And As Successor To Powers, Spence Engineering Company, Inc., Spx Cooling Technologies, Inc. Individually And 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., Thrush Co., Inc., Union Carbide Corporation, Velan Valve Corp., Ward Leonard Electric Co., Warren Pumps Llc, Individually And As Successor To The Quimby Pump Company, Weil Mclain, A Division Of Marley-Wylain Company, William Powell Company, York International Corporation, Individually And As Successor To Frick Company, 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.
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FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PRESTON CONAWAY, JR. and Index No.: 190332/2018 GLENDA CONAWAY, Plaintiffs, (Mendez) -against- ABB, INC., et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION ON BEHALF OF DEFENDANTS CHAMPLAIN CABLE CORPORATION AND HERCULES LLC TROUTMAN SANDERS LLP 875 Third Avenue New York, New York 10022 (212) 704-6000 Attorneys for Defendant Champlain Cable Corporation and Hercules LLC 39850968v1 1 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 PRELIMINARY STATEMENT Defendants Champlain Cable Corporation and Hercules LLC submit this Memorandum of Law in support of their motion to dismiss plaintiffs’ Complaint for lack of personal jurisdiction, or in the alternative, on the grounds that New York is an inconvenient forum. Defendants are not subject to this Court’s jurisdiction because Champlain Cable is a Delaware corporation with a principal place of business in Vermont and Hercules is a Delaware corporation with a principal place of business in Delaware. STATEMENT OF FACTS Plaintiffs commenced this action by the filing of a Summons and Complaint with the New York County Clerk on August 15, 2018.2 Champlain Cable Corporation filed its Answer on October 8, 2018 asserting numerous affirmative defenses, including lack of personal jurisdiction.3 On April 25, 2019, Plaintiffs filed a Fourth Amended Complaint, which added Hercules LLC as a defendant.4 Hercules LLC filed its Answer to the Fourth Amended Complaint on May 9, 2019 asserting numerous affirmative defenses, including lack of personal jurisdiction.5 Plaintiffs have never lived in New York.6 Plaintiffs have resided in Florida since 1981.7 Mr. Conaway has never worked in New York. Instead, he has worked in New Jersey, Pennsylvania, Delaware, and Florida. 2 Annexed as Exhibit A to the Affirmation of Matthew J. Rice, Esq., dated August 26, 2019 (hereinafter, the “Rice Aff.”), are copies of the Summons and Complaint. Plaintiffs amended their Complaint four times adding defendants each time. 3 Annexed as Exhibit B to the Rice Aff. is a copy of Champlain Cable Corporation’s Answer. See Fifty-Ninth Affirmative Defense. 4 Annexed as Exhibit C to the Rice Aff. is a copy of the Fourth Amended Complaint. 5 Annexed as Exhibit D to the Rice Aff. is a copy of Hercules LLC’s Answer. See Fifty-Ninth Affirmative Defense. 6 Annexed as Exhibit F to the Rice Aff. are the relevant portions of plaintiffPreston Conaway’s deposition testimony. See Rice Aff., Exh. F, pp. 36:22-46:22. 7 Rice Aff., Exh. F at pg. 46:11-46:22. Annexed as Exhibit E to the Rice Aff. is a copy of plaintiffs’ responses to defendants’ interrogatories and request for production of documents. See response to Interrogatory No. 1. 39850968v1 2 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 Champlain Cable is a Delaware corporation with a principal place of business located in Vermont.8 Hercules is a Delaware corporation with a principal place of business located in Delaware.9 At his deposition, Mr. Conaway testified that he observed other workers cutting and manipulating Haveg pipe in his presence while he was employed as an electrician at (1) Olin Corporation, located in Paulsboro, New Jersey, during late 1968 through early 1973, and (2) Pennwalt, located in Thorofare, New Jersey, during early 1973 through mid-1977.10 I. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED AS THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS. A. The Legal Standard for a Motion to Dismiss for Lack of Personal Jurisdiction CPLR Section 3211(a)(8) states that: “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . the court has no jurisdiction of the person of the defendant.” When a defendant challenges the court’s personal jurisdiction over it, the burden to prove that jurisdiction exists falls upon the plaintiff. CRT Investments, Ltd. V. BDO Seidman, LLP, 85 A.D.3d 470, 471 (1st Dep’t 2011); Marist Coll. v Brady, 84 A.D.3d 1322, 1322-1323 (2d Dep’t 2011). Plaintiff must adduce evidence demonstrating there is a basis for asserting jurisdiction over that defendant. Mere conclusory allegations in the complaint that defendant had the requisite contacts in New York cannot be considered in determining challenges to personal jurisdiction. Pramer S.C.A. v. Abaplus Int’l. Corp., 76 A.D.3d 89, 97-98 (1st Dep’t 2010). Indeed, New York case law is clear that the plaintiff must demonstrate through the pleadings and 8 Annexed as Exhibit G to the Rice Aff. is the Affidavit of Timothy A. Lizotte, dated August 18, 2019. See paragraphs 3 and 4 of the Lizotte Affidavit. 9 Annexed as Exhibit H to the Rice Aff. is the Affidavit of Jennifer I.Henkel, dated August 21, 2019. See paragraphs 3 and 4 of the Henkel Affidavit. 10 Haveg pipe is the product associated with Defendants. Rice Aff., Exh. F at pp. 130:20-131:10; 133:22-135:4; 135:24-136:8; 138:10-139:8; 141:1-11; 143:5-14; and generally pp. 317:13-329:2. 39850968v1 3 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 additional non-conclusory, non-speculative affidavits that facts exist to exercise personal jurisdiction over the defendant. See Peterson v. Spartan Industries, Inc., 33 N.Y.2d 463, 466-67 (1974); see also Baker Salvage Corp. v. Maple Leaf Foods, Inc., 195 A.D.2d 954 (4th Dep’t 1993). B. Defendants are not subject to general personal jurisdiction. Plaintiffs’ Complaint does not expressly reference CPLR § 301 or state that Defendants are subject to this court’s general jurisdiction. Instead, the Complaint alleges that Defendants were corporations “doing business in the State of New York.”11 However, “doing business” is not a basis for general jurisdiction over a defendant. The Fourteenth Amendment’s Due Process Clause dictates the outer boundaries of a state court’s authority to proceed against a non-resident defendant. Daimler AG v. Bauman, 571 U.S. 20, 134 S.Ct. 746 (2014). A corporation cannot be subject to general jurisdiction in every state in which it conducts business. Id. at 761. Such an “exorbitant” view of personal jurisdiction is “barred by due process constraints on the assertion of adjudicatory authority.” Id. at 751. As a matter of due process, in order for a corporation to be amenable to general personal jurisdiction, suit must be brought in either the place of incorporation or principal place of business of the company. Id. at 760. The Supreme Court stressed that for a corporation, “the place of incorporation and principal place of business are paradigm bases for general jurisdiction.” Id. “In Daimler, the Supreme Court brought an end to ‘doing business’ jurisdiction, holding that a corporation must be ‘at home’ in a state in order to assert general jurisdiction over it.” Norex Petroleum Ltd. v. Blavatnik, 48 Misc. 3d 1226(A) (Sup. Ct. N.Y. Cty. 2015). Further, “[t]he only kind of corporate activity that ordinarily will satisfy the general jurisdiction test is 11 Rice Aff., Exh. A at ¶ 23 and Exh. C at ¶ 6. 39850968v1 4 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 incorporation in the state or maintenance of a corporation’s principal place of business in the state.” Id. at 20; see also Daimler, 134 S.Ct. at 760; Magdalena v. Lins, 999 N.Y.S.2d 44, 45 (App.Div. 1st Dep’t 2014) (applying Daimler and holding “there is no basis for general jurisdiction pursuant to CPLR § 301, since [the defendant] is not incorporated in New York and does not have its principal place of business in New York”). The Supreme Court in Daimler rejected the notion that a corporation is subject to general jurisdiction in every state in which it engages in a substantial, continuous, and systematic course of business, or other continuous and systematic contact, or where its sales are sizeable. 134 S. Ct. at 760-761. In the case are bar, Defendants cannot be considered to be ‘at home’ in New York. Defendants are neither incorporated in New York nor have their principal place of business in New York. Furthermore, the fact that a corporation has registered to do business in a state does not by itself confer general jurisdiction as this Court concluded in Gibson v. Air & Liquid Systems Corp., Index No.: 190187/2015 and Chen v. AERCO Int’l, Index No.: 190133/2017.12 Accordingly, this Court does not have general jurisdiction over Defendants and plaintiffs’ Complaint should be dismissed. C. The New York Long Arm Statute Does Not Confer Jurisdiction over Defendants CPLR §302(a) states: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: (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 12 Annexed as Exhibits I and J to the Rice Aff. are this Court’s decisions in the Gibson and Chen cases. 39850968v1 5 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, (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) owns, uses or possesses any real property situated within the state. The long arm statute does not provide a basis for specific personal jurisdiction over Defendants. i. Defendants are not subject to specific personal jurisdiction pursuant to CPLR § 302(a)(1) Two requirements must be met to invoke personal jurisdiction under this section. The defendant must have transacted business in New York, purposeful availment, and there must be a substantial relationship, or nexus, between the plaintiff’s claim and the defendant’s transactions in New York. Licci v Lebanese Can. Bank, 20 N.Y.3d 327, 338, 960 (2012); Licci v Lebanese Can. Bank, 673 F.3d 50 (2d Cir. 2012); see also, Frank Paterno v Laser Spine Institute, 24 N.Y.3d 370, 998 (2014). Under CPLR § 302(a)(1), there must be a relationship connecting the forum, the transaction and the claim. Here, the evidence demonstrates that Mr. Conaway did not work with or around any Haveg pipe in New York but instead only in New Jersey. It is also undisputed that Mr. Conaway never worked in New York. Accordingly, there is no connection among Defendants, Mr. Conaway, and New York, and therefore, specific personal jurisdiction pursuant to CPLR 302(a)(1) does not exist as to Defendants. ii. Defendants are not subject to specific personal jurisdiction pursuant to CPLR § 302(a)(2) CPLR § 302(a)(2) has been narrowly construed to apply only when a defendant’s wrongful conduct is performed in New York. Feathers v. McLucas, 15 N.Y.2d 443 (1965). In a toxic exposure case, the tortious act is plaintiff’s exposure to the toxin from an allegedly defective product. Consorti v. Owens Corning Fiberglass Corp., 86 N.Y.2d 449 (1997). 39850968v1 6 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 There is no evidence that Mr. Conaway worked with or around Haveg pipe in New York, and therefore, CPLR §302(a)(2) does not confer jurisdiction over defendants. iii. Defendants are not subject to specific personal jurisdiction pursuant to CPLR § 302(a)(3) This section provides for personal jurisdiction over anyone who “commits a tortious act without the state causing injury to person or property within the state.” The New York Court of Appeals has ruled that for purposes of this section, the situs of the injury is the location of the event which caused the injury, and not where the party experiences the consequences of such injury. Paterno v. Laster Spine Institute, 24 N.Y.3d 370 (2014). Plaintiffs cannot show that Defendants are subject to this Court’s personal jurisdiction based on CPLR § 302(a)(3) because Defendants’ alleged tortious acts did not cause injury to Mr. Conaway within New York. The facts are incontrovertible that Mr. Conaway allegedly encountered Haveg pipe only in New Jersey. Furthermore, Mr. Conaway was diagnosed with mesothelioma in Florida where he has resided since 1981. D. Exercising jurisdiction over Defendants would violate Due Process Whether federal due process permits the exercise of long-arm jurisdiction is a function of the relationship among the defendant, the forum, and the litigation. Walden v. Fiore, 134 S. Ct. 1115 (2014). For a state to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum state. Id. at 1121. The facts demonstrate that there is no connection, let alone substantial, between Defendants suit related conduct and New York. In short, there is no basis to assert specific jurisdiction over the Defendants. Plaintiffs, who never lived or worked in New York, and who have resided in Florida since 1981, claim that Mr. Conaway was exposed to asbestos from Haveg pipe while working at two locations in New Jersey. Moreover, none of Mr. Conaway’s alleged 39850968v1 7 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 exposure to asbestos occurred in New York. Also, Champlain Cable Corporation is a Delaware corporation with a principal place of business in Vermont and Hercules LLC is Delaware corporation with a principal place of business located in Delaware. Accordingly, under these circumstances, assertion of specific jurisdiction over Defendants would not comport with CPLR 302 or Due Process. II. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED ON THE GROUNDS OF FORUM NON CONVENIENS. Should this Court conclude that it has jurisdiction over Defendants, plaintiffs’ claims should be dismissed against Defendants on the ground of forum non conveniens as there is absolutely no connection between plaintiffs’ claims and New York. It is well established that New York courts “are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State.” Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 (1984). The CPLR has codified the common law doctrine of forum non conveniens and provides that: When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action. CPLR § 327(a). Retention of a case is appropriate only where the plaintiff’s claims have a “substantial nexus” to the State of New York. Pahlavi, 62 N.Y.2d at 479. New York courts look to a number of factors in applying this statute to determine whether the requisite “substantial nexus” with New York exists: (1) the residency of the parties; (2) whether the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction; (3) the location of relevant witnesses and evidence; (4) the potential hardships to defendants of litigating in New York; (5) the availability of an alternative forum; and (6) the applicability of foreign law. Id. No 39850968v1 8 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 one factor is controlling – to the contrary, “[t]he great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case. Id. There is absolutely no nexus – let alone substantial nexus – between plaintiffs’ claims and New York. The relevant factors weigh strongly in favor of dismissal of this case on the grounds of forum non conveniens. It is undisputed that: (1) plaintiffs are residents of Florida (and have been since 1981), (2) the entirety of Mr. Conaway’s alleged exposure to asbestos occurred outside New York, (3) all documents and potential relevant witnesses are located outside New York, (4) Mr. Conaway was diagnosed and treated for his mesothelioma in Florida; and (5) plaintiffs’ claims can be brought in the courts of the states where Mr. Conaway alleges exposure to asbestos, such as Pennsylvania, New Jersey, Delaware, or Florida, each of which provide an appropriate and available alternative forum in which to adjudicate Plaintiffs’ claims. 39850968v1 9 of 10 FILED: NEW YORK COUNTY CLERK 08/26/2019 05:04 PM INDEX NO. 190332/2018 NYSCEF DOC. NO. 358 RECEIVED NYSCEF: 08/26/2019 CONCLUSION For all the foregoing reasons, Defendants, Champlain Cable Corporation and Hercules LLC, respectfully request that this Court, (1) grant their motion to dismiss plaintiffs’ Complaint for lack of personal jurisdiction; or in the alternative; (2) grant their motion dismissing the claim based on forum non conveniens; and (3) for such other relief as this Court deems just and necessary. Dated: New York, New York August 26, 2019 Respectfully submitted, TROUTMAN SANDERS, LLP By: /s/ Matthew J. Rice Matthew J. Rice, Esq. 875 Third Avenue New York, New York 10022 (212) 704-6000 Attorneys for Defendants Champlain Cable Corporation and Hercules LLC 39850968v1 10 of 10