Brown v. CBS Corp.

• Decision Date: 14 May 2014
• Docket Number: Civil No. 3:12cv01495AWT.
• Citation: 19 F.Supp.3d 390
• Court: U.S. District Court — District of Connecticut
• Parties: Cindy S. BROWN, as Personal Representative to the Estate of Walter E. Brown, Plaintiff, v. CBS CORPORATION, et al., Defendants.

19 F.Supp.3d 390

Cindy S. BROWN, as Personal Representative to the Estate of Walter E. Brown, Plaintiff

v.CBS CORPORATION, et al., Defendants.

Civil No. 3:12cv01495AWT.

United States District Court, D. Connecticut.

Signed May 14, 2014.

Charles E. Soechting, Jr., Jessica Dean, Rachel Perkins, Stuart J. Purdy, Simon Greenstone Panatier Bartlett, PC, Dallas, TX, Christopher Meisenkothen, Early, Lucarelli, Sweeney & Meisenkothen, LLC, New Haven, CT, for Plaintiff.

Brett Michael Szczesny, Dan E. Labelle, Halloran & Sage, Westport, CT, Charles K. Mone, Judith Perritano, Meghan L. Riordan, Pierce, Davis & Perritano, LLP, Bryan Matthew Abramoske, Cetrulo LLP, Jeniffer A.P. Carson, Kendra A. Christensen, Governo Law Firm LLC, Boston, MA, Patrick J. Glinka, Danaher, Lagnese & Sacco, P.C., Richard M. Dighello, Jr., Updike, Kelly & Spellacy, P.C., Hartford, CT, Deborah M. Parker, Guy Glazier, Michael D. Smith, Glazier Yee, LLP, Los Angeles, CA, Thomas M. Canevari, Freehill, Hogan & Mahar, New York, NY, Kristen W. Sherman, Adler, Pollock & Sheehan, Providence, RI, for Defendants.

RULING ON LOCKHEED MARTIN CORPORATION'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION

ALVIN W. THOMPSON, District Judge.

This action was brought in Connecticut Superior Court by Walter Brown against fourteen defendants, including Lockheed Martin Corporation (“Lockheed”), for injuries related to exposure to asbestos. Lockheed removed the case to this court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a), based on the fact that Walter Brown's claims stemmed from his work with the United States Air Force, Lockheed was operating under the direction and control of the United States Government, and Lockheed was asserting federal defenses. Lockheed filed a motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction.

After Walter Brown died, an amended complaint was filed by Cindy S. Brown, the personal representative of the estate of Walter Brown. Subsequently, the plaintiff filed a motion to amend the first amended complaint, which the court granted. After the parties completed jurisdictional discovery, Lockheed moved to dismiss the second amended complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2). For the reasons set forth below, the motion to dismiss is being granted.

I. FACTUAL ALLEGATIONS

The decedent was, and the plaintiff currently is, a resident and citizen of Alabama. Lockheed is a Maryland corporation with its primary headquarters in Bethesda, Maryland, and “five business areas” headquartered in Gaithersburg, Maryland; Manassas, Virginia; Fort Worth, Texas; Dallas, Texas; and Denver, Colorado. (Def.'s Mem. Supp. Mot. Dismiss (Doc. No. 199) (“Def.'s Mem.”), at 4.) However, despite being incorporated and having its principal places of business elsewhere, Lockheed is registered to do business in Connecticut and has a registered agent for service of process in Connecticut.

Additionally, Lockheed maintains several other contacts with Connecticut. For example, between 2008 and 2012, Lockheed derived roughly $160 million in revenue from Connecticut-based work. During that same time period, Lockheed also maintained employees at four different locations in Connecticut, i.e. New London, Groton, Windsor Locks, and Hartford, and leased four separate parcels of real property in Connecticut, located in New London, New Haven, and Fairfield. It is still leasing one parcel of real property in New London-a 9,000 square foot space where there is a Lockheed Martin sign on the building. Lockheed has operated out of this space since at least 1997. Finally, Lockheed pays Connecticut state corporate income tax on the revenue it earns in Connecticut, and it maintains workers' compensation insurance policies in Connecticut for its Connecticut-based workers, in accordance with Connecticut state law.

The extent of these contacts, however, is relatively small when compared to Lockheed's operations as a whole. For instance, between 2008 and 2012 its Connecticut-based employees made up less than 0.05% of its total work force, and the revenue they generated in any given year accounted for between just under 0.05% to just over 0.1% of Lockheed's total annual revenue. In addition, although Lockheed does currently lease one facility in Connecticut and has leased other properties in the past, it does not own any real property and it does not maintain any bank accounts in the state. Finally, the work Lockheed employees undertake in Connecticut is not directed toward or advertised to Connecticut residents; all Connecticut-based work is performed pursuant to federal contracts for the benefit of the United States Government.

II. LEGAL STANDARD

On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, “[t]he plaintiff bears the burden of establishing that the court has jurisdiction over the defendant....” Whitaker v. American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001). Where a defendant challenges “only the sufficiency of the plaintiff's factual allegation, in effect demurring by filing a Rule 12(b)(2) motion, the plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction.” Ball v. Metallurgie Hoboken–Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). When, as here, “the parties have conducted extensive discovery regarding the defendant's contacts with the forum state”, the plaintiff's showing “ ‘must include an averment of facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over the defendant.’ ” Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir.2010) (quoting Metro. Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996) ) (alterations in original).

Furthermore, “ ‘[w]hen a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials .... [t]he allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits.’ ” Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 580 (2d Cir.1993) (quoting Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir.1990) (per curiam) (citations omitted), cert. denied, 498 U.S. 1068, 111 S.Ct. 786, 112 L.Ed.2d 849 (1991) ). Thus, “ ‘[i]f the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.’ ” Id.

Finally, “the amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits,” and thus Connecticut law is applied to Lockheed's motion to dismiss.

Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963).

III. DISCUSSION

In Connecticut, “a trial court may exercise jurisdiction over a foreign defendant only if the defendant's intrastate activities meet the requirements both of [the state's long-arm] statute and of the due process clause of the federal constitution.” Thomason v. Chem. Bank, 234 Conn. 281, 285–86, 661 A.2d 595 (1995). “[The] first inquiry must be whether our long-arm statute authorizes the exercise of jurisdiction under the particular facts of this case. Only if we find the statute to be applicable do we reach the question whether it would offend due process to assert jurisdiction.” Lombard Bros., Inc. v. Gen. Asset Mgmt. Co., 190 Conn. 245, 250, 460 A.2d 481 (1983).

A. Connecticut's long-arm statute

Lockheed contends that the plaintiff cannot avail herself of Connecticut's long-arm statute because neither she nor the decedent was a resident of Connecticut when this action was filed, and the “Connecticut long-arm statutes do not confer jurisdiction over actions committed by a nonresident party against another nonresident.” Pomazi v. Health Indus. of Am., 869 F.Supp. 102, 104 (D.Conn.1994). The Connecticut long-arm statute pertaining to foreign corporations is found at Conn. Gen.Stat. § 33–929 and states, in pertinent part:

(a) The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the foreign corporation. When the registered agent is other than the Secretary of the State and his successors in office, service may be effected by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state....

(e) Every foreign corporation which transacts business in this state in violation of section 33–920 [requiring foreign corporations to obtain a certificate of authority from the Secretary of the State] shall be subject to suit in this state upon any cause of action arising out of such business.

(f) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as [listed in the statute]....

Lockheed argues that the language in this statute means that unless a foreign corporation is transacting business in Connecticut without first obtaining permission from the Secretary of the State, in violation of Conn. Gen.Stat. § 33–920, then the plaintiff must be either a resident of, or a nonresident having her usual place of business in, Connecticut in order for Connecticut courts to exercise jurisdiction over the...