Black v Brenntag N. Am.

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Black v Brenntag N. Am. 2018 NY Slip Op 31849(U) August 2, 2018 Supreme Court, New York County Docket Number: 190016/2017 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 08/03/2018 10:33 AM 1] INDEX NO. 190016/2017 NYSCEF DOC. NO. 647 RECEIVED NYSCEF: 08/03/2018 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: MANUEL J. MENDEZ NEW YORK COUNTY PART13 ~----- Justice IN RE: NEW YORK CITY ASBESTOS LITIGATION MARY BLACK and DAVID BLACK, INDEX NO. - against - 190016/2017 MOTION DATE Plaintiffs, 06/20/2018 001 MOTION SEQ. NO. BRENNTAG NORTH AMERICA, et al, MOTION CAL. NO. Defendants. The following papers, numbered 1 to Jl were read on Johnson & Johnson Inc. and Johnson & Johnson Consumer lnc.'s motion to dismiss the Complaint: ' PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - z Exhibits Affidavits - Exhibits ... 1- 6 7-8 ~~~~~~~~~~~~~~--tt--~~=----=-~- Re p Iyin g A ff id av~s~~~~~~~~~~~~~~~~~~~~~~~9~~- D Yes UJ Cross-Motion: 0 Upon a reading of the foregoing cited papers, it is Ordered that Defendants Johnson & Johnson and Johnson & Johnson Consumer lnc.'s ("JJCI") motion to dismiss the Plaintiffs' Fourth Amended Complaint ("Amended Complaint") and all cross-claims asserted against them for lack of personal jurisdiction pursuant to CPLR §3211 (a)(S) and pursuant to CPLR §327(a) on forum non conveniens grounds, is granted . w UJ u <( _w I- a:: UJ (!) =>z .., - 0 I- c w a:: 3: 0 ..J ..J 0 WW 0:: LL LL :::C: w la:: a:: >O ..J LL ..J ::::> LL 1- u w ~ UJ w a:: UJ w X No Plaintiff Mary Black, a citizen of Florida, was diagnosed with mesothelioma in November of 2016. Plaintiffs allege Mrs. Black was exposed to asbestos in a variety of ways. Plaintiffs allege Mary Black was exposed to Johnson & Johnson's asbestos-containing Baby Powder or Shower to Shower products when using them from approximately 1960 through 1973, when she was younger using a mix of various talcum powders with her mother and sisters filling the air in the bathroom that was thick enough to see footprints on the floor and covering her body with it at least one to two times a day. Johnson & Johnson baby powder was also used in Mary Black's hair when she did not feel like washing it. After 1973 through 2014 Mary Black also claims she used Johnson & Johnson baby powder on her children and grandchildren every day after bathing and diaper changes. Mrs. Black has never had any contact with New York. She has lived and worked in various towns and cities in Kentucky (with no exposure), Iowa, and Florida (Opposition Papers, Exhs. 1, 2, 3 and 4). The Plaintiffs commenced this action on January 12, 2017 to recover for injuries resulting from Mrs. Black's exposure to asbestos. Her husband, David Black asserts a claim for loss of consortium (Opposition Papers, Exh. 5). UJ <( u z 0 t:= 0 ~ Johnson & Johnson is a New Jersey holding company with its principal place of business in New Jersey (Affidavit of Tina French). Johnson & Johnson does not sell or manufacture any products (/d). JJCI is a subsidiary of Johnson & Johnson and is a New Jersey Corporation with its principal place of business in New Jersey (Affidavit of Laura A. Donnelly). JJCI manufactured and distributed Johnson & Johnson's Baby Powder and Shower to Shower products during the subject time period. JJCI does not own any property in New York (Id). JJCI does not manufacture, research, develop, design, or test Johnson & Johnson's Baby Powder or Shower to Shower products in New York (/d). 1 1 4 of [*FILED: NEW YORK COUNTY CLERK 08/03/2018 10:33 AM 2] NYSCEF DOC. NO. 647 INDEX NO. 190016/2017 RECEIVED NYSCEF: 08/03/2018 . . John~or:i & ,Johnson and JJCI (hereinafter the "J&J Entities") move to d1sm1ss Plaintiffs Amended Complaint against them pursuant to CPLR §3211 (a)(~) ~nd_ C~LR §327(a). The J&J Entities contend that this court does not have personal 1urisd1ct1on over them because Mrs. Black's exposures occurred outside of the State of New York, Mrs. Black did not reside in the State of New York Johnson & Johnson and ~JCI are not incorporated in New York and do not maintain their principal places ~f. business here, and therefore, there is no general jurisdiction. Furthermore the J&J Ent1t1es c_ontend that Plaintiffs' claims do not arise from any of the J&J Entities New York transactions, and that the J&J Entities did not commit a tortious act within the State of Ne_w york or without the state of New York that caused an injury to person or property within the State of New York, and therefore, there is no specific jurisdiction (CPLR §302[a][1], [2] and [3]). Finally, the J&J Entities contend that if this court finds that it can exert personal jurisdiction over them, this action should be dismissed on the ground of forum non conveniens. Plaintiffs oppose the motion contending that this court does have personal general jurisdiction and long-arm jurisdiction over the J&J Entities and that this court should deny the J&J Entities attempt to dismiss this action on the grounds of forum non conveniens. The Plaintiffs further contend that if personal jurisdiction over the J&J Entities cannot be established at this time, the motion should be denied to allow for jurisdictional discovery as they have made a "sufficient start." "On a motion to dismiss pursuant to CPLR §3211, [the court] must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 729 NYS2d 425, 754 NE2d 184 [2001]). A motion to dismiss pursuant to CPLR §3211 (a)(8) applies to lack of jurisdiction over the defendant. Jurisdiction over a non-domiciliary is governed by New York's general jurisdiction statute §301, and longarm statute §302(a). The plaintiff bears the burden of riroof when seeking to assert jurisdiction (Lamarr v Klein, 35 AD2d 248, 315 NYS2d 695 [1 t Dept. 1970]). However, in opposing a motion to dismiss, the plaintiff needs only to make a sufficient start by showing that its position is not frivolous (Peterson v Spartan Indus., Inc., 33 NY2d 463, 354 NYS2d 905, 310 NE2d 513 [1974]). General Jurisdiction: "General Jurisdiction permits a court to adjudicate any cause of action against the defendant, wherever arising, and whoever the plaintiff" (Lebron v Encarnacion, 253 F.Supp3d 513 [EDNY 2017]). To demonstrate jurisdiction pursuant to CPLR §301, the plaintiff must show that the defendant's "affiliations with [New York] are so continuous and systematic as to render them essentially at home in" ~ew York (Goodyear Dunlop Tires Operations, S.A. v Brown, 131 S. Ct. 2846 [2011]; Daimler AG v Bauman, 134 S. Ct. 746, 187 L.Ed.2d 624 [2014], Magdalena v Lins, 123 AD3d 600, 999 NYS2d 44 [1st Dept. 2014]). "For a corporation the paradigm forum for general jurisdiction, that is the place where the corporation is at home, is the place of incorporation and the principal place of business" (Daimler AG, supra). Absent "exceptional circumstances" a corporation is at home where it is incorporated or where it has its principal place of business (/d). This court cannot exercise general personal jurisdiction over Johnson & Johnson because it is not incorporated, nor does it have its principal place of business in the State of New York. Johnson & Johnson is a New Jersey corporation with its principal place of business in the State of New Jersey. Plaintiffs' contention that Johnson & Johnson subjected itself to general jurisdiction because of several isolated events that Johnson & Johnson was involved in (including industry meetings that Johnson & Johnson employees attended in the 1970s, four (4) letters sent from Johnson & Johnson representatives to New York-based 2 2 of 4 [*FILED: NEW YORK COUNTY CLERK 08/03/2018 10:33 AM 3] NYSCEF DOC. NO. 647 INDEX NO. 190016/2017 RECEIVED NYSCEF: 08/03/2018 scientists, and two statements made to the New York Times) [Opposition Memoran_d~m of Law; Exs. 22-3~] is unavailing since only "continuous and systematic contac~ c~n _establish general personal jurisdiction (Daimler AG, supra). F~rthermore, the P_lamt1ff 1s unable to demonstrate "exceptional circumstances" for this Court to exercise general personal jurisdiction over Johnson & Johnson. Likewis~, _this c<;>urt is also not able to ~xercis~ gen~ral_ personal jurisdiction over JJCI because 1t 1s not mcorp~rated, nor does 1t have its prmc1pal place of business in the ~tate <;>f New York. JJCI 1s a New Jersey _co_rporation with its principal place of business m the State of New Jersey. The Plamt1ffs do not allege or present evidence of any New York contacts on behalf of JJCI to demonstrate "exceptional circumstances" for this court to exercise general personal jurisdiction over JJCI. Specific Jurisdiction: "For the court to exercise specific jurisdiction over a defendant the suit must arise out of or relate to the defendant's contacts with the forum. Specific Jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. When no such connection exists specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. What is needed is a connection between the forum and the specific claims at issue" (Bristol-Myers Squibb Co. v Superior Court of California, San Francisco, 136 S.Ct. 1773 [2017]). "It is the defendant's conduct that must form the necessary connection with the forum state that is the basis for its jurisdiction over it. The mere fact that this conduct affects a plaintiff with connections with a foreign state does not suffice to authorize jurisdiction" (Id; Walden v Fiore, 134 S. Ct. 1115 [2014]). With CPLR §302(a)'s long-arm statute, courts may exercise specific personal jurisdiction over a non-resident when it: "(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, ... ; or (3) commits a tortious act without the state causing injury to person or property within the state, ... , 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 state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possesses any real property situated within the state" (CPLR §302[a]). This court cannot exercise specific personal jurisdiction under CPLR §302(a)(1) because there is no articulable nexus or substantial relationship between the J&J Entities' New York conduct and the claims asserted. This section of the statute is triggered when a defendant transacts business in New York and the cause of action asserted arises from that activity. The record before this Court establishes that the injuries asserted by the Plaintiffs did not arise from any of Johnson & Johnson's activity within the State of New York. Plaintiffs assertion that JJCI maintained domestic operations in New York including a facility for dental products is unavailing as this conduct does not have an articulable nexus or substantial relationship to Plaintiffs' claims. Furthermore, the Plaintiffs admitted that the product at issue was purchased in Florida or Iowa. This court cannot exercise personal specific jurisdiction under CPLR §302(a)(2) because the J&J Entities have not committed a tortious act within the state of New York. All of the alleged exposures to JJCl's Baby Powder and Shower to Shower occurred in the States of Florida or Iowa. Exercise of specific jurisdiction under this section requires a defendant to be physically present in New York. "CPLR §302(a)(3) which allows for jurisdiction over an out of state defendant who causes personal injury in New York by committing a tortious act elsewhere if it reasonably expects its act to have consequences in this state and derives substantial revenue from interstate or international commerce, was adopted for the purpose of 3 3 of 4 [*FILED: NEW YORK COUNTY CLERK 08/03/2018 10:33 AM 4] NYSCEF DOC. NO. 647 INDEX NO. 190016/2017 RECEIVED NYSCEF: 08/03/2018 bro~den!n~ Ne~ York's long-arm jurisdiction so as to include non-residents who cause tort1_ous mJury m the state by an act or omission outside the state .... The amendment was not intended to burden unfairly non-residents whose connection with the State is remote and who could not reasonably be expected to foresee that their acts outside of New York could have harmful consequences in New York" (Lebron, supra). More is required than just an injury in New York. The plaintiff must establish that the ~efendant either "(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, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce"(CPLR § 302[a][3]). This court cannot exercise personal specific jurisdiction under CPLR §302(a)(3) because the injury did not occur in the State of New York. Mrs. Black was never exposed to JJCl's products in New York, but rather exposed in Florida or Iowa meaning those states are potentially the situs of the injury. Since the exposure and the injury -the original event- took place outside of the State of New York, Mrs. Black is not and has never been a resident of the State of New York, the New York courts cannot exercise jurisdiction (Bristol-Myers Squibb, supra; Lebron, supra). Plaintiffs fail to make a "sufficient start" for this court to grant jurisdictional discovery. Regarding specific jurisdiction, the relevant question is whether there is any "connection between the forum and the specific claims at issue" (Bristol-Myers Squibb, supra). Plaintiffs failed to demonstrate "that discovery would uncover facts establishing" jurisdiction (Hardwick v Auriemma, 116 AD3d 465, 983 NYS2d 509 [1st Dept. 2014]). The J&J Entities are not "at home" in New York, and Mrs. Black did not purchase or use any product manufactured by JJCI in New York. Since this court is unable to exercise personal jurisdiction over the J&J Entities, Plaintiffs' Amended Complaint must be dismissed without the necessity to analyze whether the Amended Complaint should have been dismissed on grounds of forum non conveniens. Accordingly, it is ORDERED, that Defendants Johnson & Johnson and Johnson & Johnson Consumer lnc.'s motion to dismiss Plaintiff's Fourth Amended Complaint and all cross-claims asserted against them for lack of personal jurisdiction pursuant to CPLR §3211 (a)(8) and pursuant to CPLR §327(a) on forum non conveniens grounds, is granted, and it is further, ORDERED, that Plaintiffs' claims in the Fourth Amended Complaint and all cross-claims asserted against Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. are severed and dismissed, and it is further, ORDERED, that the Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. serve a copy of this Order with Notice of Entry on the Trial Support Clerk located in the General Clerk's Office (Room 119) and on the County Clerk, by e-filing protocol, and it is further, ORDERED, that the Clerk of Court enter judgment accordingly. ENTER: MANUEL J . liil::-:-1.\.!~EZ ,:!,!::I. , _, . ~ J.S.C. MA~ENDEZ Dated: August 2, 2018 J.S.C. Check one: 0 FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: D DO NOT POST D REFERENCE 4 4 of 4

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