United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. FALLON UNITED STATES MAGISTRATE JUDGE
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
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.
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)
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)
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).
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).
to the relevant portions of Delaware's long-arm statute,
10 Del. C. § 3104(c)(1)-(4), a court may
exercise personal jurisdiction ...