Remmes v. International Flavors & Fragrances, Inc.
| Decision Date | 26 June 2006 |
| Docket Number | No. C04-4061-MWB.,C04-4061-MWB. |
| Citation | 435 F.Supp.2d 936 |
| Parties | Kevin REMMES, Plaintiff, v. INTERNATIONAL FLAVORS & FRAGRANCES, INC., a New York corporation; Givaudan Flavors Corp., a Delaware corporation, formerly known as Givaudan, Inc. and Givaudan-Roure, a division of Roche Group; Flavors of North America, Inc., an Illinois corporation; Sensient Flavors, Inc., a Wisconsin corporation, formerly known as Universal Flavors, Inc.; The Flavor & Extract Manufacturers Association of the United States, a Maryland non-profit corporation; and, The Roberts Group, L.L.C., a District of Columbia limited liability company, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Daniel M. Homolka, Minneapolis, MN, Dennis M. McElwain, Smith & McElwain, Sioux City, IA, Donald H. Loudon, Jr. J'Nan C. Kimak, Kenneth Blair McClain, Scott A. Britton-Mehlisch, Scott B. Hall, Steven Edward Crick, Humphrey, Farrington & McClain, PC, Independence, MO, for Plaintiff.
Daniel Lee Jones, Jr., Mary-Jo Middelhoff, Dinsmore & Shohl, LLP, Frank C. Woodside, III, Dinsmore Shohl, Cincinnati, OH, Robert M. Livingston, William R. Hughes, Jr., Stuart Tinley Peters Thorn Hughes Faust & Madsen, Council Bluffs, IA, Michael J. Frey, Hellige, Lundberg, Meis, Erickson & Frey, Michael R. Hellige, Hellige, Frey & Roe, Sioux City, IA, Moira Pietrowski, Ronald B. Lee, Roetzel & Andress, Akron, OH, Lee M. Seese, Michael Best & Friedrich LLP, Milwaukee, WI, Matthew T.E. Early, Maurice B. Nieland, Rawlings Neiland Probasco Killinger Ellwanger Jacobs, et al, Sioux City, IA, Paul E. Benson, Michael Best & Friedrich, Milwaukee, WI, Campbell Killefer, Venable, LLP, Washington, DC, Jay Elliott Denne, Stanley E. Munger, Munger, Reinschmidt & Denne, Alan E. Fredregill, Sioux City, IA, Damond R Mace, J. Philip Calabrese, Leslie A. Morsek, Squire, Sanders & Dempsey LLP, Cleveland, OH, Patrick L. Sealey, Sioux City, IA, for Defendants.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ...................................................938
A. Procedural Background .....................................................938
B. Factual Background ........................................................939
II. LEGAL ANALYSIS ................................................................940
A. Legal standards for personal jurisdiction .................................940
B. Analysis ..................................................................940
1. Personal jurisdiction under the conspiracy theory .....................940
2. Pleading conspiracy with sufficient particularity .....................943
C. Certification For Interlocutory Appeal ....................................943
III. CONCLUSION ....................................................................944
I. INTRODUCTION AND BACKGROUND
On October 5, 2004, plaintiff Kevin Remmes filed an Amended Complaint against defendants International Flavors & Fragrances, Inc. ("IFF"), Givaudan Flavors Corp. ("Givauden"), Flavors of North America, Inc. ("FONA"), Sensient Flavors, Inc. ("Sensient"), the Flavor and Extract Manufacturers Association of the United States ("FEMA"), and the Roberts Group, L.L.C. ("TRG") alleging three causes of action. The three causes of action asserted are for negligence, fraudulent concealment and civil conspiracy. The Complaint alleges that this court has subject matter jurisdiction by virtue of diversity of citizenship of the parties, 28 U.S.C. § 1332.
Defendants FEMA and TRG filed a joint Motion To Dismiss For Lack Of Personal Jurisdiction. In their motion, defendants FEMA and TRG asserted that they did not have sufficient minimum contacts with the State of Iowa so as to satisfy the Due Process Clause of the United States Constitution. The court denied defendants FEMA and TRG's motion, concluding that:
the Iowa Supreme Court would recognize civil conspiracy as a basis to support the exercise of in personam jurisdiction under Iowa's long-arm statute. Moreover, the court concludes that Remmes successfully made out a prima facie case which would support application of the conspiracy theory of jurisdiction. Consequently, the court finds it has personal jurisdiction over defendants FEMA and TRG and denies FEMA and TRG's joint Motion To Dismiss For Lack Of Personal Jurisdiction.
Remmes v. International Flavors & Fragrances, Inc., 389 F.Supp.2d 1080, 1096 (N.D.Iowa 2005).1
On December 30, 2005, plaintiff Kevin Remmes filed a second amended complaint against defendants IFF, Givauden, FONA, Sensient, FEMA, and TRG, again alleging three causes of action. The three causes of action asserted are for negligence, fraudulent concealment and civil conspiracy. Defendants FEMA and TRG then filed their Second Motion To Dismiss For Lack Of Personal Jurisdiction (# 170). In their motion, defendants FEMA and TRG assert that personal jurisdiction is lacking under both the traditional "minimum contacts" test and the conspiracy theory approach to personal jurisdiction. Plaintiff Remmes filed a timely resistance to defendants motion. Defendants FEMA and TRG filed a reply brief in response to plaintiff Remmes's resistance to their joint motion.
Viewing the record in the light most favorable to plaintiff Remmes and resolving all factual conflicts in his favor, the court makes the following factual findings. Defendant FEMA is a national trade association that is organized under the laws of Maryland. FEMA's only office is located in Washington, D.C. FEMA is comprised of flavor manufacturers, flavor users, flavor suppliers and other entities with an interest in the United States flavor industry. FEMA is engaged in such activities as promoting the commercial interests of its members, monitoring and responding to legislation of concern to the flavor industry, educating its members on regulatory compliance, and protecting its members' intellectual property rights. FEMA currently has a national membership of 102 companies. Among its members are defendants IFF, Givauden, FONA, and Sensient. None of its current members are based in Iowa. Only one Iowa based company, Kemin Industries, Inc., has ever belonged to FEMA. Kemin Industries, Inc. participated in FEMA to learn about issues related to the United States Food and Drug Administration's regulation of flavors. Kemin Industries, Inc. was a member of FEMA from April 1987 until April 1989. In April of 1989, Kemin Industries, Inc. terminated its membership in FEMA.
Defendant TRG is a limited liability company organized under the laws of Maryland. Defendant TRG's sole office is in Washington, D.C. Defendant TRG is a management company that provides trade associations, such as FE MA, with staff and managerial services. Other than FEMA, none of the trade associations that TRG represents have anything to do with the flavor industry.
Neither FEMA nor TRG manufactures, distributes, or sells butter flavorings or other products. Neither FEMA nor TRG participated in the manufacture, distribution, or sale of butter flavorings to plaintiff Remmes's employer, the American Popcorn Company. The American Popcorn Company is not a member of FEMA. Neither FEMA nor TRG possess any control or authority over the manufacturing, distribution, or sales actions of any of FEMA's members, including defendants IFF, Givauden, FONA, and Sensient.
FEMA and TRG are not registered to do business in Iowa. In addition, FEMA and TRG do not maintain a registered agent for service of process in Iowa and do not hold themselves out as licensed to conduct business in Iowa. Neither FEMA nor TRG have ever owned or leased property in Iowa, maintained any bank accounts in Iowa, or had any telephone listings in the State of Iowa. FEMA and TRG have never conducted a business meeting or a seminar in Iowa. Neither FEMA nor TRG has ever disseminated business materials in Iowa. FEMA and TRG have never produced, manufactured, distributed, or sold flavoring substances or other products anywhere in the world, including the State of Iowa. Neither FEMA nor TRG control or monitor FEMA's members' production, manufacturing, distribution, or selling activities anywhere in the world, including the State of Iowa.
FEMA and TRG were involved in a conspiracy with at least defendant Givauden to suppress the health risks of butter flavorings. FEMA members, including defendants IFF, Givauden, FONA, and Sensient, actively sold butter flavorings in Iowa. These products were known by defendants IFF, Givauden, FONA, Sensient, FEMA and TRG to be potentially dangerous to the end users of the butter flavorings. Research concerning the dangers of butter flavorings was concealed from the public. Plaintiff Remmes was injured as a result of his exposure, at his place of employment, in Iowa, to butter flavorings.
H. LEGAL ANALYSIS
In this court's Remmes decision, the court set out in detail the legal standards for determination of whether personal jurisdiction over a defendant is proper. Remmes, 389 F.Supp.2d at 1090-1093. Thus, the court will not consider those standards in detail here, other than to note the following:
The plaintiff bears the ultimate burden of proving personal jurisdiction over a defendant. See Watlow Elec. Mfg. v. Patch Rubber Co., 838 F.2d 999, 1000 (8th Cir.1988). Jurisdiction, however, need not be proved by a preponderance of the evidence until trial or until an evidentiary hearing is held. Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.1991). In order to defeat a motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing of jurisdiction. Dakota Indus., 946 F.2d at...
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