Paz v. Brush Engineered Materials, Inc.

Decision Date07 January 2005
Docket NumberNo. 1:04CV597.,1:04CV597.
CourtU.S. District Court — Southern District of Mississippi
PartiesGeorge PAZ, et al. Plaintiffs v. BRUSH ENGINEERED MATERIALS, INC., et al. Defendants

Randall Allan Smith(PHV), Smith & Fawer, New Orleans, LA, Robert C. Latham, Truly, Smith, Latham & Kuehnle, Natchez, MS, Ruben Honik(PHV), Joseph J. Urban(PHV), Sherrie J. Cohen(PHV), Golomb & Honik, Philadelphia, PA, Stephen M. Wiles(PHV), Smith & Fawer, New Orleans, LA, for Plaintiffs George Paz, Barbara Faciane, Joe Lewis, Donald Jones, Ernest E. Bryan, Gregory Condiff, Karla Condiff, Odie Ladner, Henry Polk, Roy Tootle, William H. Stewart, Jr., Margaret Ann Harris, Judith A. Lemon, Theresa Ladner, Yolanda Yolanda Paz, individually and on behalf of all others similarly situated.

Jeffery D. Ubersax(PHV), Jones Day, Cleveland, OH, Paul H. Stephenson, III, Watkins & Eager, Jackson, for Defendants Brush Engineered Materials, Inc. and Brush Wellman, Inc.

Timothy D. Crawley, Anderson, Crawley & Burke, PLLC, Ridgeland, for Defendant Wess-Del, Inc.

Roy D. Campbell, III, Bradley, Arant, Rose & White, LLP, Jackson, MS, for Defendant The Boeing Company.

ORDER GRANTING MOTION TO DISMISS OF DEFENDANT BRUSH ENGINEERED MATERIALS, INC.

GUIROLA, District Judge.

THE MATTER BEFORE THE COURT are 1) the Motion to Dismiss filed by Defendant Brush Engineered Materials, Inc. [16]; 2) the Motion to Dismiss filed by Brush Engineered Materials, Inc. ("BEMI") and Brush Wellman Inc. and joined in by The Boeing Company [14]; and 3) the Motion to Dismiss filed by Defendant Wess-Del, Inc. [22]. Plaintiffs have responded to each of the Motions, and each of the Defendants have replied in support of their Motions. After due consideration of the submissions and the relevant law, it is the Court's opinion that it lacks personal jurisdiction over Defendants Brush Engineered Materials, Inc. and Wess-Del, Inc. Further, as to the Defendants over which the Court has jurisdiction, the Court finds that the Complaint fails to state a claim upon which relief can be granted. Accordingly, the Motions to Dismiss should be granted.

DISCUSSION

Plaintiffs are employees or family members of employees of the John C. Stennis Space Center in Stennis, Mississippi and the Canoga Park facility in Canoga Park, California. They filed this lawsuit for themselves and others similarly situated as a "Class Action Complaint For Medical Monitoring." They claim that they were exposed to respirable beryllium dust, fumes and particulate matter, and the Defendants failed to warn them about the dangers of such exposure. Plaintiffs state that the beryllium products at issue were processed and manufactured by Defendants Brush Wellman Inc. and BEMI, were then machined, assembled, and fabricated by Defendant Wess-Del, who in turn sold them to Defendant The Boeing Company, who used them at the Canoga Park facility in California and the Stennis Space Center in Mississippi. Plaintiffs seek the establishment of a medical monitoring trust fund to pay for diagnostic tests, and treatment in the event that the tests reveal disease or illness resulting from exposure.1 Defendants BEMI and Wess-Del, Inc. have filed Motions to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2) challenging the Court's personal jurisdiction. All Defendants object to what they assert is improper venue pursuant to Fed.R.Civ.P. 12(b)(3), and all seek dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

Standard for Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2):

When a defendant files a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proof. Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir.1982). "It is not necessary for [the plaintiff] to `establish personal jurisdiction by a preponderance of the evidence; prima facie evidence of personal jurisdiction is sufficient.'" Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir.2000), quoting Wyatt, 686 F.2d at 280. The Court will accept the Plaintiffs'"uncontroverted allegations, and resolve in [its] favor all conflicts between the facts contained in the parties' affidavits and other documentation." Kelly, 213 F.3d at 854, citing Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.2000).

PERSONAL JURISDICTION:

"A federal district court sitting in diversity may exercise personal jurisdiction only to the extent permitted a state court under applicable state law." Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir.1997) (citations omitted). "`The state court or federal court sitting in diversity may assert jurisdiction if: (1) the state's long-arm statute applies, as interpreted by the state's courts; and (2) if due process is satisfied under the fourteenth amendment to the United States Constitution.'" Allred, 117 F.3d at 281 (citations omitted). Therefore, first, the law of Mississippi must provide for the assertion of such jurisdiction; and, second, the exercise of jurisdiction under Mississippi state law must comport with the dictates of the Fourteenth Amendment Due Process Clause. Smith v. DeWalt Products Corp., 743 F.2d 277, 278 (1984). However, if Mississippi law does not provide for the assertion of personal jurisdiction over the defendant, it follows that the Court need not consider the due process issue. Id.; Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616 (5th Cir.1989).

Mississippi's long-arm statute provides in relevant part:

Any nonresident ... corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

Miss.Code Ann. § 13-3-57.

The Plaintiffs rely solely on the "tort-prong" of Mississippi's long-arm statute to support their contention that personal jurisdiction over BEMI is proper. The statute's tort-prong provides for personal jurisdiction over any nonresident who commits a tort in whole or in part within the state of Mississippi against a resident or nonresident of the state. Miss.Code Ann. § 13-3-57; Jobe v. ATR Marketing Inc. 87 F.3d 751, 753 (5th Cir.1996). The plaintiffs bear the burden of establishing the Court's jurisdiction over nonresident defendant BEMI. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994). In determining whether personal jurisdiction exists, the Court is not restricted to a review of the plaintiff's pleadings. It may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery. Colwell Realty Investments v. Triple T. Inns of Arizona, 785 F.2d 1330 (5th Cir.1986).

In construing the tort-prong of Mississippi's long-arm statute, the Mississippi Supreme Court has held that personal jurisdiction over a defendant who allegedly committed a tort is proper if any of the elements of the tort — or any part of an element — takes place in Mississippi. Smith v. Temco, Inc., 252 So.2d 212 (Miss.1971).

Plaintiffs claim that the Court may assert personal jurisdiction over BEMI, a foreign corporation with no contacts in Mississippi, because it is insufficiently separate from its subsidiary Brush Wellman, Inc., which does have contacts in Mississippi. The prerequisites for establishing personal jurisdiction over a corporation, based on the contacts of its subsidiary, are set out in Hargrave v. Fibreboard Corp., 710 F.2d 1154 (5th Cir.1983).

[S]o long as a parent and subsidiary maintain separate and distinct corporate entities, the presence of one in a forum state may not be attributed to the other.... Generally, our cases demand proof of control by the parent over the internal business operations and affairs of the subsidiary in order to fuse the two for jurisdictional purposes.... The degree of control exercised by the parent must be greater than that normally associated with common ownership and directorship.... All the relevant facts and circumstances surrounding the operations of the parent and subsidiary must be examined to determine whether two separate and distinct corporate entities exist.

Id. at 1160 (internal quotation marks and citations omitted)(emphasis added). See also Access Telecom, Inc. v. MCI Telecommunications Corp., 197 F.3d 694, 717 (5th Cir.1999) ("typically, the corporate independence of companies defeats the assertion of jurisdiction over one by using contacts with the other"); Dickson Marine, Inc. v. Panalpina, Inc., 179 F.3d 331, 338 (5th Cir.1999) ("Courts have long presumed the institutional independence of related corporations, such as parent and subsidiary, when determining if one corporation's contacts with a forum can be the basis of a related corporation's contacts"; presumption may be overcome by "clear evidence"); Southmark Corp. v. Life Investors, Inc., 851 F.2d 763, 773-74 (5th Cir.1988) ("it is well-settled that where ... a wholly owned subsidiary is operated as a distinct corporation, its contacts with the forum cannot be imputed to the parent"); Benton v. Cameco Corp., 375 F.3d 1070, 1081 (10th Cir.2004) (A holding or parent company has a separate corporate existence and is treated separately from the subsidiary in the absence of circumstances justifying disregard of the corporate entity").

a. Brush Engineered Materials, Inc.

Defendant BEMI has submitted the affidavit of Michael C. Hasychak, its Vice-President, Treasurer and Secretary. Mr. Hasychak states that BEMI is a holding company incorporated under the laws of the State of Ohio in February 2000, with its...

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3 cases
  • Parker v. Brush Wellman, Inc.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 29, 2005
    ...high court, and not federal court, to change state law); Beretta U.S.A. Corp., 277 F.3d at 421 (same); Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580, 586 (S.D.Miss.2005) (in case alleging exposure to beryllium, refusing to recognize medical monitoring fund as available remedy a......
  • Paz v. Brush Engineered Materials, Inc.
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 2007
    ...to plaintiffs' medical monitoring claim and a lack of personal jurisdiction over two of the defendants. Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580 (S.D.Miss. 2005) (reversed in part and question certified by Paz v. Brush Engineered Materials, Inc., 445 F.3d 809 (5th Cir.2006......
  • Paz v. Brush Engineered Materials Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 13, 2009
    ...moved for dismissal on the medical monitoring cause of action, which the district court granted. Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580, 586-87 (S.D.Miss.2005) ("Paz I"). The Paz plaintiffs appealed to this court, which certified the question to the Mississippi Supreme C......

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