Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Asbestos Litigation

United States District Court, D. Delaware

September 14, 2017

IN RE ASBESTOS LITIGATION
v.
A.O. SMITH CORPORATION, et al., Defendants. MICHAEL R. HARDING and SALLY HARDING, Plaintiffs,

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action is a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), filed by defendant Exelon Corporation ("Exelon"). (D.I. 60) For the reasons set forth below, the court recommends granting Exelon's motion to dismiss.

         II. BACKGROUND

         A. Procedural History

         Michael and Sally Harding ("plaintiffs") filed this asbestos action in the Delaware Superior Court against multiple defendants on January 20, 2017, asserting claims arising from Mr. Harding's alleged harmful exposure to asbestos. (D.I. 1, Ex. 1 at 2) Defendant Crane Co. removed the action to this court on March 10, 2017. (D.I. 1) Exelon filed a motion to dismiss based on lack of personal jurisdiction on May 22, 2017. (D.I. 60) Plaintiffs did not respond to the motion.

         B, Facts

         Plaintiffs allege Mr. Harding developed lung cancer as a result of exposure to asbestos-containing products during his career with various employers, including the United States Navy, where Mr. Harding worked as a pipe fitter from 1963 to 1967. (D.I. 1, Ex. 1 at ¶¶ 3, 13) Plaintiffs contend defendants manufactured, sold, removed, installed, or distributed asbestos-containing products. (Id. at ¶ 8) Accordingly, plaintiffs assert negligence, willful and wanton conduct, strict liability, and loss of consortium claims. (D.I. 1, Ex. 1 at ¶¶ 14-32)

         Plaintiffs have resided in Darien, Connecticut since 1983. (D.I. 1, Ex. 1 at ¶ 2) Exelon is not a Delaware business entity and does not have a principal place of business in Delaware. (D.I. 60 at ¶ 3)

         III. LEGAL STANDARDS

         Rule 12(b)(2) of the Federal Rules of Civil Procedure 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 plaintiffs favor. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004); 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 7 Bank v. Cal. Fed. Sav. & Loan Ass 7i, 819 F.2d 434, 437 (3d Cir. 1987). To meet this burden, the plaintiff must produce "sworn affidavits or other competent evidence, " since a Rule 12(b)(2) motion "requires resolution of factual issues outside the pleadings." Time Share Vacation Club v. Ail. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). A plaintiff "need only establish a. prima facie case of personal jurisdiction" when the court has not held an evidentiary hearing. O 'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).

         To establish personal jurisdiction, a plaintiff must produce facts sufficient to satisfy two requirements by a preponderance of the evidence, one statutory and one constitutional. See Time Share, 735 F.2d at 66; Reach & Assocs. v. Dencer, 269 F.Supp.2d 497, 502 (D. Del. 2003). With respect to the statutory requirement, the court must determine whether there is a statutory basis for jurisdiction under the forum state's long-arm statute. See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998); Reach & Assocs., 269 F.Supp.2d at 502. The constitutional basis requires the court to determine whether the exercise of jurisdiction comports with the defendant's right to due process. See id; Int'l Shoe Co. v. Washington, 326 U.S. 310, 316(1945).

         Pursuant to the relevant portions of Delaware's long-arm statute, 10 Del. C. ยง 3104(c)(1)-(4), a court may exercise personal jurisdiction ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.