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Fugate v. Boeing Co.

United States District Court, Third Circuit

June 20, 2013

HERSHELL FUGATE and SUSAN FUGATE, Plaintiffs,
v.
BOEING CO., et al., Defendants.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Presently before the court in this diversity action is a motion to dismiss for lack of personal jurisdiction (the "Motion" or "Motion to Dismiss") (D.I. 23) filed by Defendant Higbee, Inc. ("Higbee") pursuant to Federal Rule of Civil Procedure 12(b)(2). Hershell Fugate and Susan Fugate (the "Plaintiffs") oppose Higbee's Motion, and request leave to conduct jurisdictional discovery. (D.I. 25 at 1, 3) For the reasons which follow, I recommend that the court GRANT Higbee's Motion to Dismiss, and DENY the Plaintiffs' request for leave to conduct jurisdictional discovery.

II. BACKGROUND

A. Procedural Background

The Plaintiffs filed this personal injury action against eighteen defendants, including Higbee (collectively, the "Defendants"), on December 3, 2012, in the Superior Court of Delaware. (D.I. 1, Ex. A) The Complaint alleges that Hershell Fugate ("Mr. Fugate") suffered injuries as a result of exposure to asbestos throughout his employment and through personal automotive work. ( Id. , Ex. A ¶¶ 25-27). On January 29, 2013, the case was removed to this court by Defendant United Technologies Corporation. ( Id. )

On February 13, 2013, Higbee filed the pending Motion to Dismiss. (D.I. 23) The court held oral argument on the merits of the Motion on June 19, 2013.

B. Facts

The Plaintiffs claim that Mr. Fugate developed lung cancer, among other diseases and health problems, as a result of exposure to asbestos throughout his employment: (1) as a jet engine mechanic in the United States Air Force, from 1965 to 1968; (2) at the NY Railroad from 1968 to 1969; (3) as a launderer for Ford, in Michigan, from 1970 to 1975; (4) as a customer service representative for Con Rail Railroad, in New York, from 1975-1999; and (5) while performing personal automotive work from 1959 to 1964. ( Id. , Ex. A ¶¶ 22, 25) The Plaintiffs assert that the Defendants manufactured, sold, or distributed asbestos-containing products. ( Id., Ex. A ¶ 29) Plaintiffs reside in Georgia, and aver that the Georgia law is the substantive law of this case. ( Id, Ex. A ¶¶ 1-2, 24)

Defendant Higbee is a New York corporation with its principal place of business in Syracuse, New York. (D.I. 24, Ex. B ¶ 3) Higbee manufactures custom built products to customers' specifications, and does not generally sell any products to distributors. ( Id. , Ex. B ¶ 3) Higbee does not: have any offices in Delaware, [1] have any employees in Delaware, have any independent contractors in Delaware, advertise in Delaware, use telephone calls, facsimile messages, or other electronic messages to solicit potential Delaware customers, own or lease real estate in Delaware, hold any interest in any asset or property within Delaware, or pay taxes in Delaware. ( Id., Ex. B ¶¶ 4-14)

Higbee's revenue from sales in Delaware during 2012 were approximately $7, 591.00, which represents 0.070% of Higbee's gross sales for the 2012 fiscal year. ( Id. , Ex. B ¶ 15)

III. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Personal Jurisdiction

Federal Rule of Civil Procedure 12(b)(2) directs the court to dismiss a case when the court lacks personal jurisdiction over the defendant. Fed.R.Civ.P. 12(b)(2). When reviewing a motion to dismiss pursuant to Rule 12(b)(2), a court must accept as true all allegations of jurisdictional fact made by the plaintiff and resolve all factual disputes in the plaintiff's favor. Traynor v. Liu, 495 F.Supp.2d 444, 448 (D. Del. 2007). Once a jurisdictional defense has been raised, the plaintiff bears the burden of establishing, with reasonable particularity, that sufficient minimum contacts have occurred between the defendant and the forum to support jurisdiction. See Provident Nat'l Bank v. Cal. Fed. Say. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). To meet this burden, the plaintiff must produce "sworn affidavits or ...


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