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Gorton v. Air & Liquid Systems Corp.

United States District Court, M.D. Pennsylvania, Harrisburg

March 19, 2018

THOMAS D. GORTON, II, and his wife, RHONDA J. GORTON, Plaintiffs,
v.
Air & Liquid Systems Corporation As Successor-by-Merger to Buffalo Pumps, et al., Defendants.

          OPINION

          JOY FLOWERS CONTI, Chief United States District Judge

         I. Introduction

         Pending before the court in this asbestos case initiated by plaintiffs Thomas D. Gorton, II (“Mr. Gorton”) and Rhonda J. Gorton (together with Mr. Gorton, “plaintiffs”) is a motion to dismiss the complaint (ECF No. 4) filed by defendant Ford Motor Company (“Ford”) and a motion to dismiss the complaint filed by Pacific Bell Telephone Co. (“Pacific Bell”), Nevada Bell Telephone Co. (“Nevada Bell”), AT&T Corp.[1] and AT&T, Inc. (collectively with Pacific Bell, Nevada Bell, and AT&T Corp., the “telephone defendants”).[2] Three main arguments are raised in support of dismissal of the complaint: (1) the court is without subject-matter jurisdiction over the claims asserted against the telephone defendants because those claims fall under the exclusive jurisdiction of state workers' compensation systems; (2) the court is without personal jurisdiction over any of the moving defendants; and (3) plaintiffs failed to state any plausible claims for relief.

         The arguments with respect to this court's subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) are not persuasive because worker's compensation exclusivity does not limit a federal court's jurisdiction. That argument is more appropriately addressed on the merits of the case. As explained in this opinion, personal jurisdiction may be based upon specific or general jurisdiction. Here, there is no specific jurisdiction. With respect to general jurisdiction, the issue is whether Ford and the telephone defendants consented to general jurisdiction in Pennsylvania under 42 Pa. Cons. Stat. § 5301. Because Pacific Bell, Nevada Bell, and AT&T, Inc. were not registered as foreign corporations in Pennsylvania at the time plaintiffs claim that their acts or omissions resulted in Mr. Gorton's exposure to asbestos and there are otherwise insufficient facts to establish personal jurisdiction, the motions to dismiss with respect to those defendants will be granted for lack of personal jurisdiction, pursuant to Rule 12(b)(2). Ford and AT&T Corp. were registered as foreign corporations under Pennsylvania law at the time plaintiffs allege their acts or omissions caused Mr. Gorton's asbestos exposure. Plaintiffs' allegations against those defendants, however, are conclusory and do not pass muster under Rule 12(b)(6). The claims asserted against them will be dismissed without prejudice.

         II. Procedural History

         On June 23, 2017, this diversity action was removed from the Dauphin County Court of Common Pleas to the United States District Court for the Middle District of Pennsylvania. (ECF No. 1.) Plaintiffs, who are husband and wife, named at least sixty-five defendants in the complaint, including Ford and the telephone defendants. (Id. at 1-4.) Plaintiffs assert the following six counts in the complaint:

- Count I: Products Liability;
- Count II: Breach of Implied Warranty;
- Count III: Negligence; - Count IV: Intentional Conduct-Fraudulent Concealment;
- Count V: Premises Liability (against only the telephone defendants); and
- Count VI: Loss of Consortium.

(Id.)

         On June 30, 2017, Ford filed a motion to dismiss the complaint and a brief in support of the motion. (ECF Nos. 4, 101.) On the same day, the telephone defendants filed a motion to dismiss the complaint and a brief in support of the motion. (ECF Nos. 10, 102.) On July 14, 2017, plaintiffs filed a response in opposition to each of the motions to dismiss. (ECF Nos. 27, 28.) On July 25, 2017, Ford filed a reply brief in support of its motion to dismiss. (ECF No. 41.) On July 28, 2017, the telephone defendants filed a reply brief in support of its motion to dismiss. (ECF No. 50.)

         On January 29, 2018, the court held a hearing with respect to the motions to dismiss. (H.T. 1/29/2018.) Plaintiffs entered three exhibits into evidence. (Id. at 20.) The court having heard from the parties determined supplemental briefing was necessary to resolve the pending motions. (Id. at 46-51.) On February 8, 2018, Ford and the telephone companies filed their supplemental briefs in support of their motions to dismiss. (ECF Nos. 230, 232.) On February 21, 2018, plaintiffs filed their supplemental briefs in response. (ECF Nos. 254, 255.)

         The motions to dismiss having been fully briefed are now ripe to be decided by the court.

         III. Factual Allegations in the Complaint

         Mr. Gorton sustained an asbestos-related injury, and in January 2017, was diagnosed with Pleural Mesothelioma. (ECF No. 1-4 ¶ 12.) Mr. Gorton was informed of his diagnosis in February 2017. (Id.) Plaintiffs alleges that while Mr. Gorton was employed by some of the named defendants he was exposed to asbestos through the use of products created by some of the named defendants or while employed on the premises of some of the named defendants. (Id. ¶ 7.)

         According to plaintiffs, each defendant has or is “transacting business in Dauphin County, Pennsylvania.” (Id. ¶ 6.) Ford has a service address of “c/o CT Corporation System, 116 Pine Street, Suite 320, Harrisburg, Pennsylvania 17101.” (Id. ¶ 2(r).) Pacific Bell, “dba AT&T California” has a service address of “CT Corporation System, 818 W. 7th Street, Suite 930, Los Angeles, California 90017.” (Id. ¶ 2(hhh).) Nevada Bell, “d/b/a AT&T Nevada, ” has a service address of “The Corporation Trust Company of Nevada, 701 S. Carson Street, Suite 200, Carson City, Nevada 89701.” (Id. ¶ 2(kkk).) AT&T, Inc. and AT&T Communications Inc., “f/k/a AT&T Communications of Ohio, Inc., ” have a service address of “CT Corporation System, 116 Pine Street, Suite 320, Dauphin County, Harrisburg, Pennsylvania 17101.” (Id. ¶ 2(lll) and (mmm).)

         From the 1950s through the early 2000s, Mr. Gorton breathed air that was contaminated with asbestos dust and fibers shed by asbestos products sold, manufactured, supplied, or distributed upon the premises owned by defendants named in this action, including Ford and the telephone companies. (Id. ¶ 9.) Specifically, Ford manufactured and sold asbestos-containing brake shoes, linings, blocks, and pads and other automotive products. (Id. ¶ 11(r).) The telephone companies used or manufactured “various asbestos products to include but not limited to insulation, both spray and pre-formed, wiring, fire-proofing materials, and asbestos bags or pillows used to seal and fireproof the cable holes, ” and controlled “various facilities throughout the United States where plaintiff worked.” (Id. ¶ 11(hhh, jjj, kkk, lll, mmm).)

         From September 1962 until July 1968, Mr. Gorton was employed by Pacific Bell in Los Angeles, California. (Id. ¶ 8(b).) In 1978, and from 1986 through 1988, Mr. Gorton was employed by Nevada Bell in Carson City, Nevada, North Lake Tahoe, Nevada, and Reno, Nevada. (Id. ¶ 8(e).) From 1986 through 1988, Mr. Gorton was employed by AT&T, Inc. and AT&T Communications Inc. in Columbus, Ohio. (Id. ¶ 8(f)-(g).)

         IV. Facts Based upon Evidence Presented at the Hearing on January 29, 2018, and attached to the Parties' Submissions with respect to the Motions to Dismiss

         AT&T Corp. has been registered as a foreign corporation with the Commonwealth of Pennsylvania since June 4, 1912. (H.T. 1/29/2018 at 20; Pls.' Ex. 1.) Ford has been registered as a foreign corporation with the Commonwealth of Pennsylvania since March 15, 1920. (H.T. 1/29/2018 at 20; Pls.' Ex. 2.) Pacific Bell has been registered as a foreign corporation with the Commonwealth of Pennsylvania since February 5, 1996. (H.T. 1/29/2018 at 20; Pls.' Ex. 3.) Nevada Bell and AT&T, Inc. never registered as foreign corporations with the Commonwealth of Pennsylvania. (H.T. 1/29/2018 at 16-17.)

         Mr. Gorton testified that for “less than six months” in 1981 he worked with “friction material and brakes at a garage” called “Olson Brothers” when he lived in Oregon. (ECF No. 230-2 at 2, 5.) A “itemized statement of earnings” from the Social Security Administration showed that Mr. Gorton worked for “Olson Bros[.] Service Inc[.]” in 1982. (ECF No. 254-1 at 1, 4.) Specifically, Mr. Gorton performed “brake jobs, minor repairs, electrical repairs, and even pump[ed]…gas.” (ECF No. 230-2 at 2, 5.) Mr. Gorton while employed by Olson Brothers performed “[p]robably a half a dozen or so” brake jobs and worked on “[a]ll the different makes” of vehicles, including Ford vehicles. (Id. at 2, 4.)

         V. Standard of Review

         A. Federal Rule of Civil Procedure 12(b)(1)

         As a threshold matter this court must inquire whether it has subject-matter jurisdiction. In re Orthopedic “Bone Screw” Prods. Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997); Employers Ins. of Wausau v. Crown Cork & Seal Co., Inc., 905 F.2d 42, 45 (3d Cir.1990) (“It is an elementary principle that federal courts are courts of limited jurisdiction, empowered to hear cases only as provided for under Article III of the Constitution and congressional enactments pursuant thereto.”) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Consequently, “[a] federal court is bound to consider its own jurisdiction preliminary to consideration of the merits.” Trent Realty Assocs. v. First Fed. Sav. & Loan Ass'n of Phila., 657 F.2d 29, 36 (3d Cir.1981) (citing American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951)).

         The burden of establishing jurisdiction lies with the party seeking to invoke the court's jurisdiction. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991). A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction may facially or factually challenge the court's jurisdiction. Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)). In reviewing a facial attack, a court considers the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff. Gould, 220 F.3d at 176; PBGC v. White, 998 F.2d 1192, 1196 (3d Cir.1993). In reviewing a factual attack, the court may consider evidence outside the pleadings, including affidavits. Goth a v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997). When a court's power to hear a case is at issue, a court is free to weigh the evidence regarding jurisdiction. Mortensen, 549 F.2d at 891-92.

         B. Federal Rule of Civil Procedure 12(b)(2)

         A motion to dismiss pursuant to Rule 12(b)(2) challenges the ability of a court to exercise jurisdiction over a party to the dispute. The term “jurisdiction” refers to the power of a court to act and adjudicate concerning the subject matter in a given case. Noxon Chem. Prods. Co. v. Leckie, 39 F.2d 318 (3d Cir. 1930). Because federal courts, unlike their state counterparts, are courts of limited jurisdiction, it is incumbent upon the plaintiff to demonstrate that jurisdiction is appropriate. Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320 (3d Cir. 1972). “When a defendant raises the defense of the court's lack of personal jurisdiction, the burden falls upon the plaintiff to come forward with sufficient facts to establish that jurisdiction is proper.” Mellon Bank (East) P.S.F.S. v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). “Once the plaintiff has made out a prima facie case in favor of personal jurisdiction, the defendant ‘must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.' ” Id. (quoting Carteret Sav. Bank v. Shushan, 954 F.2d 141, 150 (3d Cir. 1992)). A plaintiff's prima facie showing of the minimum contacts sufficient to establish personal jurisdiction over a defendant “must be based on affirmative proof beyond the pleadings, such as affidavits, testimony or other competent evidence of specific facts[.]” 4 Charles Alan Wright, Arthur R. Miller, Adam N. Steinman, Federal Practice and Procedure § 1067.6 (4th ed. 2015).

         The district court may hold a “quasi-evidentiary hearing that may consist of oral testimony, stipulations, affidavits, deposition transcripts, authenticated documents, answers to interrogatories, and requests for admissions.” Id. “[T]he court may apply a preponderance-of-evidence standard or a standard intermediate between the preponderance-of-evidence guideline and a prima facie showing.” Id. “If both the plaintiff and the defendant produce supporting evidence and affidavits on the motion, …the plaintiff's prima facie showing will be considered sufficient and the motion to dismiss will be denied, notwithstanding the defendant's presentation of contrary material.” Id. In lieu of an evidentiary hearing, “the court must accept the facts the complaint alleges relating to the jurisdiction issue as true, at least to the extent they are uncontroverted by whatever material the defendant submits in support of its motion to dismiss.” Id.; Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). If there are factual disputes, “the district court must construe all reasonable inferences that can be drawn from the papers in the plaintiff's favor.” Wright, Miller, & Steinman, supra.

         C. Federal Rule of Civil Procedure 12(b)(6)

         A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully.. . . Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

(Id.) (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

         The Court of Appeals for the Third Circuit has instructed that “a court reviewing the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr., Corp., 809 F.3d 780, 876-87 (3d Cir. 2016). The court of appeals explained:

First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Id. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).

         VI. Discussion

         A. ...


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