Daughetee v. Chr Hansen Inc
| Decision Date | 25 March 2011 |
| Docket Number | No. C09-4100-MWB,C09-4100-MWB |
| Court | U.S. District Court — Northern District of Iowa |
| Parties | DEBORAH DAUGHETEE and STEVE DAUGHETEE, Plaintiffs, v. CHR HANSEN, INC., a Wisconsin Corporation; AMERICAN POPCORN CO., an Iowa Corporation; BUSH BOAKE ALLEN, INC., A Virginia Corporation; CONAGRA FOODS, INC., A Delaware Corporation; FIRMENICH, INC., a Delaware Corporation; GENERAL MILLS, INC., a Delaware Corporation; GIVAUDAN FLAVORS CORPORATION, a Delaware Corporation; INTERNATIONAL FLAVORS & FRAGRANCES, INC., A New York Corporation; SENSIENT FLAVORS, L.L.C., a Wisconsin Limited Liability Company; SYMRISE, INC., a New Jersey Corporation, Defendants. |
A. Standard of Review...................................5
B. Venue Analysis......................................7
1. General venue statute...........................7
2. When is venue determined?....................... 8
3. Personal jurisdiction generally.................... 12
4. Personal jurisdiction based on consent or waiver......... 16
A. Procedural Background
On May 10, 2010, plaintiffs Deborah Daughetee and Steven Daughetee ("the Daughetees") filed their First Amended Complaint against defendants, all manufacturers of microwave popcorn or popcorn butter-flavorings, alleging claims of negligence, breach of warranty and loss of consortium. Plaintiffs' claims all stem from Deborah's alleged respiratory injury resulting from her exposure to popcorn containing butter flavorings containing diacetyl. The First Amended Complaint alleges that this court has subject matter jurisdiction by virtue of diversity of citizenship of the parties, 28 U.S.C. § 1332.
Defendants Bush Boake Allen Inc., International Flavors & Fragrances, Inc., ConAgra Foods, Inc., Sensient Flavors, L.L.C., Symrise, Inc., General Mills, Inc., Firmenich Inc. ("the moving defendants") have each filed motions to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) and/or joinders to such motions(docket nos. 107, 109, 113, 114, 115, and 117). In their motions, the moving defendants contend that venue is improper in this court under § 1391(a)(1) because one co-defendant, O'Dell's, does not reside in Iowa. The moving defendants argue that because all defendants do not reside in Iowa, venue under § 1391(a)(1) is improper. The Daughetees have filed a unified response to the moving defendants' motions. The Daughetees argue that the fact that O'Dell's does not reside in Iowa is immaterial to the issue of venue because they have sought to voluntarily dismiss O'Dell's.1 The moving defendants have filed reply briefs in which they argue that the Daughetees' motion to voluntarily dismiss O'Dell's should be denied because dismissal of O'Dell's would prejudice the remaining defendants because its dismissal would deprive them of their defense of improper venue.
B. Factual Background
Plaintiffs Deborah Daughetee and Steven Daughetee are married and residing in Albuquerque, New Mexico. Defendant CHR Hansen, Inc. ("CHR Hansen") is a Wisconsin corporation with its principal place of business outside of New Mexico. Deborah purchased, prepared, and consumed microwave popcorn manufactured by defendants American Pop Corn Company ("American Pop Corn"), ConAgra Foods, Inc. ("Conagra") and General Mills, Inc. ("General Mills").
CHR Hansen supplied butter flavoring to ConAgra for use in its Hamburg, Iowa, plant. CHR Hansen's butter flavoring was added to ConAgra's Act II brands of microwave popcorn. CHR Hansen has a registered agent in Iowa for the purpose of service of process. Defendant American Pop Corn is an Iowa corporation with its principle place of businessin Sioux City, Iowa. American Pop Corn has a registered agent in Iowa. Defendant ConAgra is a Delaware corporation with its principal place of business outside of New Mexico. ConAgra operates a popcorn plant in Hamburg, Iowa. ConAgra's Hamburg popcorn plant has produced microwave popcorn since 1991 including Act II Movie Theater Butter popcorn since 1992 and Act II Butter popcorn since 1994. ConAgra has a registered agent in Iowa. Defendant Firmenich Inc. ("Firmenich") is a Delaware corporation with its principal place of business outside of New Mexico. Defendant General Mills is a Delaware corporation with its principal place of business outside of New Mexico. From 1985 to the mid-1990's, General Mills operated a plant in Cedar Rapids, Iowa, where it manufactured microwave popcorn. From the mid-1990's to 2005, General Mills operated a plant in Iowa City, Iowa, where it manufactured microwave popcorn. General Mills has authorized the Iowa Secretary of State to be its registered agent in Iowa. Defendant Givaudan Flavors Corp. ("Givaudan") is a Delaware corporation with its principal place of business outside of New Mexico. Givaudan supplied butter flavoring to American Pop Corn's plant in Sioux City, Iowa, where its butter flavoring was added to American Pop Corn's Jolly Time popcorn brand. Defendant International Flavors & Fragrances, Inc. ("IFF") is a New York Corporation with its principal place of business outside of New Mexico. Defendant Bush Boake Allen Inc. ("BBA") is a Virginia Corporation with its principal place of business outside of Iowa or New Mexico. In 2000, IFF merged with BBA and IFF expressly or impliedly agreed to assume BBA's liabilities and debts. IFF is a continuation of BBA. BBA supplied butter flavoring to ConAgra's plant in Hamburg, Iowa, where its butter flavoring was added to ConAgra's Act II and Orville Redenbacher popcorn brands. Defendant Sensient Flavors, L.L.C. ("Sensient") is a Wisconsin limited liability company with its principal place of business outside of New Mexico. Sensient supplied butter flavoring to American Pop Corn's plant in Sioux City, Iowa, where its butter flavoring wasadded to American Pop Corn's Jolly Time popcorn brand. Defendant Symrise Inc. ("Symrise") is a New Jersey corporation with its principal place of business outside of New Mexico. Symrise supplied butter flavoring to General Mills's plant in Iowa City, Iowa, where its butter flavoring was added to General Mills's Pop Secret popcorn brand.
A. Standard of Review
Rule 12(b)(3) allows a defendant to challenge venue in a pre-answer motion. See Fed. R. Civ. P. 12(b)(3). When reviewing a motion to dismiss for improper venue made pursuant to Rule 12(b)(3), the court applies the same standard used for other motions to dismiss. See Safco Prods. Co. v. WelCom Prods., Inc., 730 F. Supp.2d 959, 964 (D. Minn. 2010); Laseraim Tools, Inc. v. SDA Mfg., L.L.C., 624 F. Supp.2d 1027, 1033 (D. Ark. 2008); Transocean Group Holdings Pty Ltd. v. South Dakota Soybean Processors, 505 F. Supp.2d 573, 575 (D. Minn. 2007). The court must construe all facts in the light most favorable to the non-moving party, here the Daughetees, and take the facts alleged in the complaint as true. See Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004); Safco Prods. Co., 730 F. Supp.2d at 964; Laseraim Tools, Inc., 624 F. Supp.2d at 1033; Transocean Group Holdings PTY Ltd., 505 F. Supp.2d at 575. The Eighth Circuit Court of Appeals has held that when a defendant seeks dismissal for improper venue, that defendant bears the burden of establishing improper venue. See United States v. Orshek, 164 F.2d 741, 742 (8th Cir. 1947); Safco Prods. Co., 730 F. Supp.2d at 964 (citing Orshek, 164 F.2d at 742); Transocean Group Holdings PTY Ltd., 505 F. Supp.2d at 575 (same); Brigdon v. Slater, 100 F. Supp. 2d 1162, 1164 (W.D. Mo. 2000) (same); see also Laseraim Tools, Inc. v. SDA Mfg., L.L.C., 624 F. Supp.2d at 1033.2 However, unlikemotions to dismiss under Federal Rule of Civil Procedure 12(b)(6), when ruling on a motion to dismiss for improper venue, the court may consider matters outside the pleadings. See Liles v. Ginn-La West End, Ltd., 631 F.3d 1242, 1244 n.5 (11th Cir. 2011); Doe 1 v. AOL L.L.C., 552 F.3d 1077, 1081 (9th Cir. 2009); Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006); Continental Cas. Co. v. American Nat'l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005); Pierce v. Shorty Small's of Branson Inc., 137 F.3d 1190, 1192 (10th Cir. 1998).
B. Venue Analysis
1. General venue statute
The general venue statute, 28 U.S.C. § 1391(a), governs in this case because jurisdiction is founded solely on the basis of diversity of citizenship. 28 U.S.C. § 1391(a). Pursuant to § 1391(a), venue is proper under the following circumstances:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
All of the defendants in this case are corporations. For purposes of the general venue statute, venue is controlled by 28 U.S.C. § 1391(c), which provides:
For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a...
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