Adolf v. API, INC.
| Decision Date | 14 November 1989 |
| Docket Number | A1-89-45 and A1-89-46.,Civ. No. A1-89-98 thru A1-89-138 |
| Citation | 726 F. Supp. 764 |
| Parties | Oscar ADOLF, Plaintiff, v. A.P.I., INC., et al., Defendants. |
| Court | U.S. District Court — District of South Dakota |
Michael D. McNair, Lamb, McNair Law Firm, Fargo, N.D., for Asbestos Corp., Ltd. and Atlas Turner, Inc.
Ralph Walker, Davis, Hockenberg Law Firm, Des Moines, Iowa, Ronald McLean, Serkland Law Firm, Fargo, N.D., for Armstrong World Ind., Inc., Flexitallic Gasket Co., Inc., GAF Corp., Keene Corp., U.S. Gypsum Co., A.P. Green, National Gypsum, Turner Asbestos, Turner Newell and Union Carbide.
Mary Terzino, and John Borger, Faegre & Benson, Minneapolis, Minn., for Owens-Corning Fiberglas Corp.
Eugene D. Buckley, Collins, Buckley Law Firm, St. Paul, Minn., for Fibreboard Corp., Owens-Illinois, Inc., Pittsburgh Corning Corp.
Colleen Saande, Dosland Law Firm, Moorhead, Minn., for U.S. Mineral Products.
Jon Parrington, Pustorino Law Firm, Minneapolis, Minn., for MacArthur Corp.
Paul Oppegard, Gunhus Law Firm, Moorhead, Minn., and Wayne A. Hergott, Moss & Barnett, P.A., Minneapolis, Minn., for Flintkote.
Kyle B. Mansfield, Meagher Law Firm, Minneapolis, Minn., for A.H. Bennett, S.O.S. Products.
Steven Storslee, Fleck Law Firm, Bismarck, N.D., for W.R. Grace & Co.
Robert Cragg, Cragg & Fobbe, Hopkins, Minn., for A.P.I., Inc.
William Lucas, Lundberg Law Firm, Bismarck, N.D., for Building Sprinkler Co.
Patrick Fisher, McConn Law Firm, Grand Forks, N.D., for Combustion Engineering.
Duane Arndt, Arndt & Benton, P.A., Minneapolis, Minn., for Eagle-Picher.
Gerald Haga, Degnan Law Firm, Grand Forks, N.D., for Crane Packing.
Patrick Morley, O'Grady Law Firm, Grand Forks, N.D., for Garlock, Inc.
Stephen Plambeck, Nilles Law Firm, Fargo, N.D., for Empire Ace Insulation.
Doug Herman, Vogel Law Firm, Fargo, N.D., for Grant Wilson.
Elizabeth Runyan Greise, Shea & Gardner, Washington, D.C., for Cassiar Mining Corp.
Michael Fiergola, Zuger, Kirmis Law Firm, Bismarck, N.D., for Carey-Canada, Inc. Celotex Corp.
Robert Bennett, Bennett Law Firm, Minneapolis, Minn., for Crown Cork & Seal Co.
B. Timothy Durick, Pearce & Durick, Bismarck, N.D., for Rutland Fire & Clay.
Richard Jeffries, Jeffries Law Firm, Moorhead, Minn., for SEPCO.
George Soule, Bowman & Brooke, Minneapolis, Minn., and Steven Cahill, Cahill Law Firm, Moorhead, Minn., for Hercules Chemical.
Gary D. Sharp, MacArthur Law Firm, Detroit, Mich., and Michael Nelson, Ohnstad, Twitchell, West Fargo, N.D., for Southern Textile, H.K. Porter Co.
Susan M. Hansen, Stich, Angell Law Firm, Minneapolis, Minn., and Craig Richie, Richie & Associates, Fargo, N.D., for Asbestos Product Mfg. Corp., Asbestospray Corp., Spraycraft Corp., H. & A. Const. Corp.
David Walker, Sproul Law Firm, Valley City, N.D., for F & C Supply, Inc.
Oscar Adolf and the other 41 plaintiffs are workers and their families. Plaintiffs claim that exposure to asbestos fibre has caused them personal injury in the form of pulmonary asbestos-caused disease and disability. In total, forty-two defendants have been named, including those who mined, manufactured, processed, imported, converted, compounded, retailed, or wholesaled substantial amounts of asbestos.** This action is in federal court pursuant to 28 U.S.C. § 1441, which provides for removal from state court for actions against a foreign state or political subdivision. § 1441(d) allows removal even if some of the defendants are of the same residence as the plaintiffs. § 1441(d) also dictates that the case shall be tried by the court without a jury.
On August 4, 1981 Lac d' Amiante du Quebec, Ltee (LAQ), one of the defendants, filed a motion to dismiss for lack of personal jurisdiction. LAQ asks the Court to "dismiss Plaintiffs' Complaints as to it on the grounds and for the reasons that this Court lacks jurisdiction over its corporate person and Plaintiffs' attempt to have this Court exercise such jurisdiction in this forum violates its constitutional right to due process of law." Under the Local Rules, parties have ten days to respond to motions to dismiss. See Local Rule 5(a). Plaintiffs filed a memorandum in opposition to defendant's motion on August 25, 1989. Plaintiffs apparently mistook defendant's motion to dismiss as one for summary judgment with its twenty day response period. See Local Rule 5(b). Nonetheless, the Court has considered plaintiffs' brief.
Some of the plaintiffs asserting claims were pipefitters, boilermakers, millwrights, and ironworkers. The plaintiff's trade, they claim, exposed them to asbestos and asbestos containing products mined, manufactured, and distributed by the various defendants in these cases. Plaintiffs assert that this exposure to asbestos caused them to sustain personal injuries in the form of pulmonary asbestos caused disease. Several family members of these workers also claim that they were injured as a result of exposure to their family member's asbestos-contaminated clothing.
Based on an interrogatory answer by defendant Armstrong World Industries, a manufacturer of asbestos products, LAQ supplied asbestos to Armstrong. LAQ also supplied asbestos to defendants Johns-Manville, Owens-Corning, H.K. Porter, Fibreboard, and Raymark. Plaintiffs also assert that LAQ has not responded to discovery requests, including jurisdictional interrogatories served upon it on June 15, 1989. In its recent motion, however, defendant asserts that it mined, milled, and sold raw asbestos and that such asbestos was all sold F.O.B. Quebec, Canada. LAQ is and has been a Delaware corporation since 1952. LAQ has also taken advantage of the United States courts as a plaintiff on other occasions. See Lac d'Amiante du Quebec, Ltee v. American Home Assurance Co., 864 F.2d 1033 (3rd Cir.1988).
In its affidavit, LAQ asserts that it has never solicited sales or business in North Dakota, and never sold asbestos containing products to North Dakota customers. LAQ further asserts that it has never contracted to supply North Dakota, maintain an office in North Dakota, or appointed or authorized any agent to accept process for suit in North Dakota. Finally, LAQ claims it has never brought suit in a North Dakota court, or availed itself of the benefits of North Dakota law in any way.
A) North Dakota's Long-Arm Statute.
B) Due Process Considerations.
C) The Eighth Circuit's Five-Part Test.
I. Personal Jurisdiction
When determining whether personal jurisdiction exists over a given party, a two-prong analysis is used. Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 225 (8th Cir.1987). First, the party must fall within the provisions of the forum state's long-arm statute, a device which confers jurisdiction over a non-resident defendant. Id. If the party does indeed fit within the long-arm statute, the court must then consider whether the exercise of personal jurisdiction over the non-resident defendant offends notions of due process and fairness. Id.
A) North Dakota's Long-Arm Statute
North Dakota's long-arm statute is laid out in Rule 4(b)(2) of the North Dakota Rules of Civil Procedure. Rule 4(b)(2) states:
In considering the extent of the North Dakota long-arm statute, the Eighth Circuit instructs this Court to first determine whether a forum state's long-arm statute confers jurisdiction over a non-resident defendant. See Austad, 823 F.2d 223, 225 (8th Cir.1987). In Hust v. Northern Log, Inc., the North Dakota Supreme Court has defined the scope of Rule 4 "to encompass the exercise of personal jurisdiction by the state courts to the fullest extent permitted by due process." Id., 297 N.W.2d 429, 431 (N.D.1980). Hust also stated "that each question or personal jurisdiction must be decided on a case-by-case basis depending on the particular facts and circumstances of each case." Id. By so extending the examination of personal jurisdiction to the outer limits of due process, the two-part test collapses into an examination of due process alone; if the jurisdiction fits within the concepts of due process and fair play, it also falls within the statute. See Austad, 823 F.2d 223, 225 (8th Cir.1987). The examination will continue on these grounds.
B) Due Process Considerations
To assert personal jurisdiction over a non-resident defendant under the Constitution, courts must ensure that "`traditional notions of fair play and substantial justice'" are not offended. Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 226 (8th Cir.1987) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). Issues of what constitutes personal jurisdiction are today often heatedly debated by courts. In its most recent examination of the subject, the Supreme Court split sharply in deciding whether a court could exercise jurisdiction over a foreign supplier. See Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1986). The Eighth Circuit Court of Appeals is regarded by some as drawing one of the more narrow constrictions of...
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In re North Dakota Personal Injury Asbestos Lit.
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