Dever v. Hentzen Coatings, Inc., 03-3695.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 380 F.3d 1070
• Docket Number: No. 03-3695.,03-3695.
• Parties: Robert L. DEVER, Plaintiff-Appellant, v. HENTZEN COATINGS, INC.; Sherwin Williams Company; W.M. Barr & Company; LHB Industries., Inc.; Hill Manufacturing Company, Inc.; Niles Chemical Paint Company, Inc.; and Chase Products Company; Defendants-Appellees.
• Decision Date: 23 August 2004

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380 F.3d 1070 Robert L. DEVER, Plaintiff-Appellant,
v.
HENTZEN COATINGS, INC.; Sherwin Williams Company; W.M. Barr & Company; LHB Industries., Inc.; Hill Manufacturing Company, Inc.; Niles Chemical Paint Company, Inc.; and Chase Products Company; Defendants-Appellees. No. 03-3695. United States Court of Appeals, Eighth Circuit. Submitted: May 10, 2004. Filed: August 23, 2004.

Appeal from the United States District Court for the Western District of Arkansas, Jimm Larry Hendren, Chief Judge.

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Kenneth L. Sales, argued, Louisville, KY, for appellant.

Charles A. Banks, argued, Little Rock, AR (Paul H. Wood, Little Rock, AR, on the brief), for W.M. Barr & Co.

Tracy J. Cowan, argued, St. Louis, MO (Joseph E. Kilpatrick, Jr., Little Rock, AR, on the brief), for Sherwin Williams.

Gerard T. Noce, argued, St. Louis, MO (Randolph C. Jackson and Michael T. Newman, Fort Smith, AR, on the brief), for Niles Chemical Paint.

Before MORRIS SHEPPARD ARNOLD, McMILLIAN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Robert Dever ("Dever") claims that he developed a brain tumor as the result of his exposure to chemical products produced by Hentzen Coatings, Inc. ("Hentzen"), Sherwin Williams Company ("Sherwin Williams"), W.M. Barr & Company ("W.M. Barr"), LHB Industries, Inc. ("LHB"), Hill Manufacturing Company, Inc. ("Hill"), Niles Chemical Paint Company, Inc. ("Niles"), and Chase Products Company ("Chase Products"). The district court granted defendants' motions to dismiss for lack of personal jurisdiction. We affirm in part, reverse in part, and remand for further proceedings.

I.

Dever, a resident and citizen of Kentucky, worked as a civilian employee at the Fort Knox Army Base in Fort Knox, Kentucky. He claims that he developed a brain tumor as a result of his occupational exposure to chemical agent resistant coating ("CARC") paint products. After the one-year statute of limitations ran in Kentucky, Dever brought this tort action in the United States District Court for the Western District of Arkansas. Dever alleged that defendants manufactured, sold, or distributed the CARC products to which he was exposed in Kentucky. None of the defendants are incorporated or have principal places of business in Arkansas.

II.

We review personal jurisdiction questions de novo. Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir.1996). To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff "must state sufficient facts in the complaint to support a reasonable inference that [the defendants] can be subjected to jurisdiction within the state. Once jurisdiction ha[s] been controverted or denied, [the plaintiff] ha [s] the burden of proving such facts." Block Indus. v. DHJ Indus., Inc., 495 F.2d 256, 259 (8th Cir.1974) (internal citation omitted). The plaintiff's" `prima facie showing' must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and in opposition thereto." Id. at 260. See also Davis v. St. John's Health Sys., Inc., 348 Ark. 17, 71 S.W.3d

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55, 57 (2002) ("If the complaint does not allege sufficient facts on which personal jurisdiction can rest, then the complaint is factually deficient. Mere conclusory statements devoid of a factual foundation do not suffice in this inquiry.") (internal citation omitted); Jet Charter Serv., Inc. v. W. Koeck, 907 F.2d 1110, 1112 (11th Cir.1990) ("When a defendant raises through affidavits, documents or testimony a meritorious challenge to personal jurisdiction, the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or documents."); Taylor v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir.1967) ("We do not think that the mere allegations of the complaint, when contradicted by affidavits, are enough to confer personal jurisdiction of a nonresident defendant. In such a case, facts, not mere allegations, must be the touchstone.").

"A federal court in a diversity action may assume jurisdiction over nonresident defendants only to the extent permitted by the long-arm statute of the forum state and by the Due Process Clause." Morris v. Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir.1991). Because the long-arm statute of Arkansas confers jurisdiction to the fullest constitutional extent, see Davis, 71 S.W.3d at 58, our inquiry is limited to whether the exercise of personal jurisdiction comports with due process. Id.See also Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.1994).

"Due process requires `minimum contacts' between [a] non-resident defendant and the forum state such that `maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Burlington Indus., 97 F.3d at 1102 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). The Supreme Court has set forth two theories for evaluating minimum contacts, general jurisdiction and specific jurisdiction. Under the theory of general jurisdiction, a court may hear a lawsuit against a defendant who has "continuous and systematic" contacts with the forum state, even if the injuries at issue in the lawsuit did not arise out of the defendant's activities directed at the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In contrast, specific jurisdiction is viable only if the injury giving rise to the lawsuit occurred within or had some connection to the forum state. Id. at 414, 104 S.Ct. 1868. See also Bell Paper Box, 22 F.3d at 819 (identifying two types of personal jurisdiction — specific jurisdiction and general jurisdiction — and noting that the former "refers to jurisdiction over causes of action arising from or related to a defendant's actions within the forum state," while the latter "refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose").

Both theories of personal jurisdiction require "some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). If a court determines that a defendant has minimum contacts with the forum state, it may then consider "whether the assertion of personal jurisdiction would comport with `fair play and substantial justice.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

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