Theodore v. Air & Liquid Sys. Corp.

2019 NY Slip Op 34014(U)

GREGORY THEODORE, Plaintiff(s), v. AIR & LIQUID SYSTEMS CORPORATION, as successor-by-merger to BUFFALO PUMPS, INC.,AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC.,AMERICAN HONDA MOTOR CO., INC. (AHM),AMERICAN OIL COMPANY, Individually and as successor in interest to AMOCO TRINIDAD OIL COMPANY,AMOCO CHEMICALS CORPORATION, AMOCO PRODUCTION CO.,AMOCO TRINIDAD OIL COMPANY, AURORA PUMP COMPANY, BMCE INC.,f/k/a UNITED CENTRIFUGAL PUMP, BORGWARNER MORSE TEC LLC., BP AMERICA INC.Individually and as successor in interest to AMOCO TRINIDAD OIL COMPANYand THE STANDARD OIL COMPANY and THE STANDARD OIL COMPANY (OHIO),BP AMOCO CHEMICAL COMPANY Individually and as successor in interest to AMOCO TRINIDAD OIL COMPANYand THE STANDARD OIL COMPANY and THE STANDARD OIL COMPANY (OHIO),BP P.L.C. Individually and as successor in interest to AMOCO TRINIDAD OIL COMPANYand THE STANDAED OIL COMPANY and THE STANDARD OIL COMPANY (OHIO),BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES,CARQUEST AUTO PARTS, CBS CORPORATION, f/k/a VIACOM INC.,successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION,CERTAINTEED CORPORATION, CHEVRON PHILLIPS CHEMICAL COMPANY, LLC,CHEVRON TEXACO CORPORATION, CONOCOPHILLIPS COMPANY,as successor by merger to PHILLIPS PETROLEUM COMPANY, andTOSCO CORPORATION, CRANE CO., DANA COMPANIES, LLC,DRILLING SPECIALTIES COMPANY LLC Individuallyand as successor in interest to CHEVRON-PHILLIPS CHEMICAL COMPANY, LP,ELLIOTT COMPANY, EXXON MOBIL CORPORATION, FLOWSERVE US, INC.Solely as Successor to Rockwell Manufacturing Company,Edward Valve, Inc., Nordstrom Valves, Inc., Edward Vogt Valve Company, and Vogt Valve Company,FMC CORPORATION, on behalf of its former CHICAGO PUMP & NORTHERN PUMP BUSINESSES,FORD MOTOR COMPANY, FOSTER WHEELER, L.L.C., GARDNER DENVER, INC., GENERAL ELECTRIC COMPANY,GENUINE PARTS COMPANY, trading as NAPA AUTO PARTS, GOULDS PUMPS, INC., HARRISBURG, INC.,HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX, IMO INDUSTRIES, INC.,,ITT INDUSTRIES, INC., Individually, and as successor to BELL & GOSSETT COMPANY andas successor to KENNEDY VALVE MANUFACTURING Co., Inc., MONTELLO, INC.,NISSAN NORTH AMERICA, INC., OWENS-ILLINOIS, INC., PFIZER, INC. (PFIZER),PNEUMO ABEX LLC, successor in interest to ABEX CORPORATION (ABEX),ROPER PUMP COMPANY, SHELL OIL COMPANY,SPIRAX SARCO, INC. Individually and as successor to SARCO COMPANY,STANDARD MOTOR PRODUCTS, INC., TEXACO, INC.,THE FAIRBANKS COMPANY, TOYOTA MOTOR SALES U.S.A., Inc.,U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION,VIKING PUMP, INC., WARREN PUMPS, LLC, Defendant(s).

Index No.: 54022/2017

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

RECEIVED: January 8, 2019

January 7, 2019

NYSCEF DOC. NO. 495

To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

PRESENT: HON. MARY H. SMITH JUSTICE OF THE SUPREME COURT

DECISION & ORDER

Motion Date: 12/14/18 Defendant Caterpillar Inc. (Caterpillar) moves (#16) for an order, dismissing all claims, counterclaims, and cross-claims on the ground that the Court lacks personal jurisdiction over Caterpillar.

Defendant Aurora Pump Company (Aurora) moves (#18) for an order, dismissing all claims, counterclaims, and cross-claims on the ground that the Court lacks personal jurisdiction over Aurora.

The following papers were read:

Notice of Motion (#16), Affirmation, and Exhibits (7)

1-9

Affirmation in Opposition and Exhibits (8)

10-18

Affirmation in Reply

19

Notice of Motion (#18), Affirmation, Exhibits (8), and Memo of Law

20-30

Affirmation in Opposition and Exhibits (13)

31-45

Affirmation in Reply and Exhibits (2)

46-48

By way of background, plaintiff was allegedly employed by various business entities in the Republic of Trinidad and Tobago (Trinidad) from approximately 1970 to 1984 as a laborer and maintenance mechanic and performed various tasks that allegedly exposed him to asbestos-containing materials and by Sears Roebuck (Sears) in White Plains, New York from approximately 1987 to 1998¹ as a brake mechanic. Plaintiff alleges that he developed mesothelioma as a result of exposure to asbestos while working with various business entities or their products in Trinidad and at Sears in New York. This action ensued. Defendant The Fairbanks Company (Fairbanks) interposed an answer withvarious affirmative defenses as well as cross-claims for contribution and indemnification against each and every co-defendant. Subsequently, Caterpillar and Aurora moved to dismiss the action for lack of personal jurisdiction. On August 21, 2018, counsel for Fairbanks filed a notice, indicating that Fairbanks had commenced a bankruptcy proceeding. Thereafter, plaintiff moved to sever the action as it related to Fairbanks, which the Court granted on December 12, 2018. Accordingly, the Court now addresses the motions filed by Caterpillar and Aurora.

Upon a motion to dismiss for lack of personal jurisdiction, it is the plaintiff who bears the ultimate burden of proof to establish a basis for such jurisdiction (see America/International 1994 Venture v Mau, 146 AD3d 40, 51 [2d Dept 2016]). Plaintiff need only make a prima facie showing that defendants are subject to the personal jurisdiction of the Court (id.). Personal jurisdiction falls into two general categories, general (CPLR 301) and specific (CPLR 302). In either category, the Court's "exercise of personal jurisdiction over a defendant is informed and limited by the U.S. Constitution's guarantee of due process, which requires that any jurisdictional exercise be consistent with 'traditional notions of fair play and substantial justice' " (Brown v Lockheed Martin Corp., 814 F3d 619, 625 [2d Cir 2016], quoting Intl. Shoe Co. v State of Wash., Off. of Unemployment Compensation and Placement, 326 US 310, 316, 66 S Ct 154, 158, 90 L Ed 95 [1945]; see also Banco Ambrosiano, S.P.A. v Artoc Bank & Tr. Ltd., 62 NY2d 65, 71 [1984]). The Court may exercise general personal jurisdiction over a corporate defendant in an action regardless of the connection of the action to New York where the corporation has consented to the jurisdiction of the Court (see Creative Resources, Inc. v Rumbellow, 244 AD2d 383 [2d Dept 1997]) or where the corporation is " 'essentially at home in the forum State,' [which is] typified by 'the place of incorporation and principal place of business' " (Motorola Credit Corp. v Std. Chartered Bank, 24 NY3d 149, 161 [2014], quoting Daimler AG v Bauman, 571 US 117, 137-39 & n. 19 [2014] [Daimler]; see also Goodyear Dunlop Tires Operations, S.A. v Brown, 564 US 915, 919 [2011] [Goodyear]). Additionally, the Court may exercise specific personal jurisdiction over a corporate defendant when the action relates to the defendant's activities within the state as enumerated in CPLR 302.

In support of its motion, Caterpillar proffers evidence that it was incorporated in Delaware and that its headquarters is in Illinois. Caterpillar also proffers plaintiff's deposition testimony wherein plaintiff identified Caterpillar products as a source of alleged asbestos exposure while he was working on oil rigs in Trinidad between 1970 and 1984. Caterpillar further notes that plaintiff has not alleged that he was exposed to asbestos from Caterpillar products in New York state and that discovery has revealed no nexus between plaintiff's alleged exposure to asbestos from Caterpillar products and New York state. Based hereon, Caterpillar contends that the Court cannot exercise personal jurisdiction over Caterpillar.

In opposition plaintiff contends that Caterpillar consented to the jurisdiction of the courts of this state by registering to do business in New York. Plaintiff also contends that the Court may exercise specific jurisdiction over Caterpillar because its products allegedlyexposed individuals in New York to asbestos in a similar fashion to the Caterpillar products that allegedly exposed plaintiff to asbestos during his work in Trinidad.

CPLR 302 provides in pertinent that, "[a]s to a cause of action arising from any of the acts enumerated in this section, a court may exercise [specific] 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 . . . ." (see CPLR 302 [a] [1]). The Second Department has explained that a court may properly exercise specific personal jurisdiction " 'even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted' " (see Mejia-Haffner v Killington, Ltd., 119 AD3d 912, 913 [2d Dept 2014], quoting Fischbarg v Doucet, 9 NY3d 375, 380 [2007] [internal quotation marks and citations omitted]). Here, plaintiff has failed to provide any evidence that Caterpillar's activities in New York have any relationship, let alone a substantial relationship, with plaintiff's claims. Thus, the Court lacks specific personal jurisdiction over Caterpillar.

Next, the Court considers whether it may exercise general personal jurisdiction over Caterpillar. Plaintiff's argument here rests on the notion that Caterpillar consented to the jurisdiction of this Court by registering to conduct business in the state. The Court is unpersuaded by this argument. Business Corporation Law (BCL) § 1301 provides that a foreign corporation² shall not do business in New York until it has been authorized to do so. BCL § 1304 sets forth the contents of an application of a foreign corporation to do business in New York and BCL § 1305 sets forth the "effect" of the filing of such an application. Nothing in this statutory framework requires the foreign corporation to consent to general personal jurisdiction or alerts said corporation that its application to do business in New...