Hardwick v. 3M Co.
| Decision Date | 17 February 2021 |
| Docket Number | Case No. 2:18-cv-1185 |
| Parties | KEVIN D. HARDWICK, Plaintiff, v. 3M COMPANY, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This matter is before the Court on Defendant Daikin Industries, Ltd.'s ("Daikin") Petition for Permission to Appeal Under 28 U.S.C. § 1292(b) (ECF No. 188), Plaintiff's Memorandum in Opposition to the Petition (ECF No. 189), and Daikin's Reply in Support of the Petition (ECF No. 194). For the reasons that follow, the Court DENIES Daikin's Petition. (ECF No. 188.)
Plaintiff Kevin D. Hardwick filed this action against 3M Company, Daikin, Daikin America, Inc., E. I. du Pont de Nemours and Company, the Chemours Company, Archroma Management L.L.C. ("Archroma"), Arkema, Inc., Arkema France, S.A., Solvay Specialty Polymers, USA, LLC, and AGC Chemicals Americas, Inc. This case focuses on "PFAS," which are man-made chemicals described by the United States Environmental Protection Agency as follows:
Mr. Hardwick alleges that he and others in Ohio and the nation have potentially dangerous amounts of PFAS in their blood. He brings claims for negligence, battery, conspiracy, and declaratory judgment. Mr. Hardwick asks for equitable relief in the form of a panel of scientists to study the effects that the PFAS has in his body and for medical monitoring as part of that relief.
Defendants moved jointly to dismiss this case in its entirety under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction (ECF Nos. 67, 83), and each Defendant moved separately under Rule 12(b)(2) for dismissal based on lack of personal jurisdiction (ECF Nos. 68, 69, 71, 72, 73, 82, 84, 113). The Court issued a decision denying all Defendants' Motions to Dismiss. See Hardwick v. 3M Co., 2:18-CV-1185, 2019 WL 4757134, at *1 (S.D. Ohio Sept. 30, 2019).
Daikin and another foreign defendant, Archroma, filed a Motion to Reconsider the Denial of their Motions to Dismiss for Lack of Personal Jurisdiction. (ECF Nos. 131.) Daikin and Archroma argued that this Court's conclusion was in violation of "Sixth Circuit precedent dating back 50 years." (Defs' Reply to Mot. for Reconsideration at 1, ECF No. 140.) Daikin and Archroma contended that instead of relying on precedent, this Court relied upon "stray language in CompuServe [v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)] or cases like it." (Defs' Mot. for Reconsideration at 8, ECF No. 131.)
After briefing was complete on the reconsideration motion (ECF Nos. 133, 140), the Sixth Circuit issued Malone v. Stanley Black & Decker, Inc., 965 F.3d 499 (6th Cir. 2020), a decision in the line of cases that establish the applicable burdens under Federal Rule of CivilProcedure 12(b)(2). In Malone, as in the instant action, a foreign defendant moved for dismissal under Rule 12(b)(2), which the district court decided without the benefit of discovery or an evidentiary hearing, but rather on written submissions alone, including affidavits from the foreign defendant.
In Malone, district court granted the motion to dismiss. The Sixth Circuit in a published opinion reversed the district court's grant of dismissal, clarifying the effect of affidavits on a plaintiff's prima facie case when a court decides a motion for dismissal for lack of personal jurisdiction without the benefit of discovery or an evidentiary hearing, finding them "irrelevant." Malone, 965 F.3d at 505-06. As did this Court in its decision denying Daikin's Motion to Dismiss for Lack of Personal Jurisdiction, Malone relied on numerous prior decisions by which it was bound. Id. at 502-06 (citing Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir. 1980); Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989); Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991); Am. Greetings Corp. v. Cohn, 839 F.2d 1169 (6th Cir. 1988); Dean v. Motel 6 Operating LP, 134 F.3d 1269, 1272 (6th Cir. 1989); Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002); Schneider v. Hardesety, 669 F.3d 693, 697 (6th Cir. 2012); MAG IAS Holdings, Inc. v. Schmuckle, 854 F.3d 894, 899 (6th Cir. 2017)).
This Court included Malone in its decision denying Daikin's request for reconsideration. See Hardwick v. 3M Co., 2:18-CV-1185, 2020 WL 4436347 (S.D. Ohio Aug. 3, 2020). In that decision, the Court specifically states that Malone clarified the standard applicable to Daikin's request for dismissal under Rule 12(b)(2). Id. at *4 ().
Daikin admits that this Court's decision followed Sixth Circuit precedent, stating that Malone "sided with this Court in holding that a plaintiff makes out his prima facie case with allegations of jurisdiction alone; any affidavits submitted by the defendant are 'irrelevant.'" (Petition at 3, ECF No. 188) (quoting Malone, 965 F.3d at 505-06). However, Daikin believes that the Malone panel misinterpreted Sixth Circuit law, arguing that "Malone changed seventy-plus years of law on deciding cases in this posture." (Reply at 8, ECF No. 194.) Daikin has, therefore, filed a Petition asking this Court to certify for immediate appeal under 28 U.S.C. § 1292 its decisions on personal jurisdiction so the Sixth Circuit is forced to resolve the "intra-circuit split" Daikin contends Malone caused. (Petition at 7, ECF No. 188)
Section 1292(b) of Title 28 of the United States Code provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b).
As evidenced by the plain text, § 1292(b) certification is proper when "(1) the order involves a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an immediate appeal may materially advance the ultimate termination of the litigation." In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). All three elements must be met before certification is appropriate.
An interlocutory appeal under § 1292(b) "should be sparingly applied and is to be used only in exceptional cases." In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (quoting Kraus v. Bd. of Cty. Rd. Comm'rs for Kent Cty., 364 F.2d 919, 922 (6th Cir. 1966)); In re Trump,874 F.3d 948, 952 (6th Cir. 2017) (same); In re General Motors, LLC, No. 19-0107, 2019 WL 8403402, at *1 (6th Cir. Sept. 25, 2019) (). For example, an immediate appeal could be warranted in the rare case in which "there is a circuit split on a question that our own circuit has not answered." In re Miedzianowski, 735 F.3d at 384 (emphasis original).
Daikin petitions for certification of an interlocutory appeal of this Court's denial of its requests for dismissal for lack of personal jurisdiction. Daikin posits that this Court's decisions are "understandable, for that is also what the Sixth Circuit held in Malone v. Stanley Black & Decker, Inc., 965 F.3d 499 (6th Cir. 2020)." (Petition at 1, ECF No. 188.) Daikin acknowledges that Malone is directly on point and that "[i]f Malone governs, this Court at this stage may have jurisdiction over D[aikin]." (Petition at 3, ECF No. 188.) That is, Daikin admits that this Court's decisions follow published Sixth Circuit precedent.
Nevertheless, Daikin argues that Malone split with "decades of precedent." (Petition at 3, ECF No. 188.) Daikin believes it necessary for this Court to certify an immediate appeal so to force the Sixth Circuit to resolve what Daikin has concluded is a split in this circuit on the personal jurisdiction analysis. Daikin frames the issue for the Sixth Circuit as:
Either an affidavit is relevant to a Rule 12(b)(2) motion, as seventy years of precedent holds, or it is not, as Malone held. That is all the Sixth Circuit would need to decide.
While Daikin makes no mention of it, the Sixth Circuit has had the opportunity to decide this exact question in the wake of Malone, as counsel for Daikin is aware.
Specifically, on August 4, the day after this Court issued its decision denying Daikin's motion to reconsider, counsel for Daikin made an appearance in Malone and filed a Motion to File Amici Curiae Brief in Support of Petition for Rehearing En Banc. (Malone, Sixth Cir. Case No. 19-3880, Sixth Cir. ECF No. 42-44, 46.) The same counsel represents Daikin in the present action.1
In the Motion to File as Amici Curiae, Daikin made the same arguments to the Sixth Circuit framed in the same way as that it makes in its current Petition before this Court, i.e., either an affidavit is relevant to a Rule 12(b)(2) motion, as decades of precedent holds, or it is not, as Malone held. Daikin presented the facts of this case to the Sixth Circuit in Malone, arguing:
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