McManaway v. KBR, INC.

• Decision Date: 25 February 2010
• Docket Number: No. 3:08-cv-186-RLY-WGH.,3:08-cv-186-RLY-WGH.
• Citation: McManaway v. KBR, Inc., 695 F. Supp.2d 883 (S.D. Ind. 2010)
• Parties: Mark McMANAWAY; David Rancourt; Brent Lasher; Jody Aistrop; William Earl Bickell; Matthew Dale Board; Larry Bunner; William DeLashmutt; Jeffrey Fromme; Jeffery Henke; Anthony Huff; Ben McIntyre; Jeffrey Alan Varner; Tommy J. Ebert, JR.; Lucas Ray Whistle; Micah Partlow; Jurgen P. Turner, Jr.; Russell Kimberling; Scott Wyatt; Gary Fischl; Stephen Salamone; Russell Garvin; Daniel Kribs; David Barker; Edward Bosa; Steve Moore on behalf of the wrongful death estate of David Moore; Jason Breeden; Clinton Hammack; Sam Schultz; Brendan Wilczynski; David Angell; Brennin Shepherd; Ryan Levitz; William Michaels; Eric Flores; Jerold Evrard; Tim Thompson; Jonathan Robertson; Jesse Hardin; Clay Champion; Ronald Wilson; George Deel; James Gentry; Fred Lumpkin; Terry Miller; Ralph Stiles; and Brian Waninger, Plaintiffs, v. KBR, INC.; Kellogg, Brown & Root Services Inc.; KBR Technical Services, Inc.; Overseas Administrative Services, Ltd.; and Service Employees International. Inc., Defendants.
• Court: U.S. District Court — Southern District of Indiana

695 F. Supp.2d 883

Mark McMANAWAY; David Rancourt; Brent Lasher; Jody Aistrop; William Earl Bickell; Matthew Dale Board; Larry Bunner; William DeLashmutt; Jeffrey Fromme; Jeffery Henke; Anthony Huff; Ben McIntyre; Jeffrey Alan Varner; Tommy J. Ebert, JR.;

Lucas Ray Whistle; Micah Partlow; Jurgen P. Turner, Jr.; Russell Kimberling; Scott Wyatt; Gary Fischl; Stephen Salamone; Russell Garvin; Daniel Kribs; David Barker; Edward Bosa; Steve Moore on behalf of the wrongful death estate of David Moore; Jason Breeden; Clinton Hammack; Sam Schultz; Brendan Wilczynski; David Angell; Brennin Shepherd; Ryan Levitz; William Michaels; Eric Flores; Jerold Evrard; Tim Thompson; Jonathan Robertson; Jesse Hardin; Clay Champion; Ronald Wilson; George Deel; James Gentry; Fred Lumpkin; Terry Miller; Ralph Stiles; and Brian Waninger, Plaintiffs, v.KBR, INC.; Kellogg, Brown & Root Services Inc.; KBR Technical Services, Inc.; Overseas Administrative Services, Ltd.; and Service Employees International. Inc., Defendants.

No. 3:08-cv-186-RLY-WGH.

United States District Court, S.D. Indiana, Evansville Division.

February 25, 2010.

Christopher D. Lee, David Rancourt, Brent Lasher, William Earl Bickell, Kahn Dees Donovan & Kahn, Evansville, IN, David J. Cutshaw, Gabriel Adam Hawkins, Irwin B. Levin, Cohen & Malad LLP, Gregory L. Laker, Indianapolis, IN, Jeffrey L. Raizner, Michael Patrick Doyle, Patrick M. Dennis, Doyle Raizner LLP, Houston, TX, for Plaintiffs.

Donald M. Snemis, Howard Walton Anderson, III, Phillip R. Scaletta, Seth M. Thomas, Thomas Eugene Mixdorf, Ice Miller LLP, Indianapolis, IN, Randall Jones, Serpe Jones Andrews Callender & Bell PLLC, William H. Whitaker, Serpe, Jones, Andrews, Callender & Bell, PLLC, Houston, TX, for Defendants.

ENTRY ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

RICHARD L. YOUNG, Chief Judge.

This action is brought by forty-seven members of the Indiana National Guard ("Plaintiffs") against KBR, Inc.("KBR"), Kellogg, Brown & Root Services, Inc.("Kellogg"), KBR Technical Services, Inc.("KBR Technical"), Overseas Administration Services, Ltd.("OAS"), and Service Employees International Inc.("SEII")(collectively "Defendants").During their deployment in the summer of 2003, Plaintiffs provided security for Defendants and their employees as they worked to restore the Qarmat Ali water treatment facility in southern Iraq.Plaintiffs allege that the Qarmat Ali site was contaminated with sodium dichromate, a toxic chemical containing nearly pure hexavalent chromium.Plaintiffs claim that Defendants knew of the presence of sodium dichromate and failed to alert Plaintiffs, causing them injury and exposing them to a substantially heightened risk of cancer and other life-threatening illnesses.

Although Defendants deny Plaintiffs' allegations, that denial is not the basis for the instant motion.Rather, Defendants move the court to dismiss Plaintiffs' Third Amended Complaint for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2).For the reasons set forth below, Defendants' motion must be GRANTED.Defendants' two previously filed motions to dismiss for lack of personal jurisdiction(based on Plaintiffs' Original Complaint and Second Amended Complaint) are DENIED AS MOOT.

I.Motion to Dismiss Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(2), a court is required to dismiss an action for lack of personal jurisdiction.A plaintiff's complaint need not include facts alleging personal jurisdiction.Steel Warehouse of Wisconsin, Inc. v. Leach,154 F.3d 712, 715(7th Cir.1998)(citingTurnock v. Cope,816 F.2d 332, 333(7th Cir.1987)).However, once a defendant raises lack of personal jurisdiction as a defense, the plaintiff bears the burden of showing that jurisdiction is proper.Purdue Research Found. v. Sanofi-Synthelabo, S.A.,338 F.3d 773, 782(7th Cir.2003)(citations omitted).The precise nature of the plaintiff's burden depends on whether the court's ruling is based on an evidentiary hearing or the submission of written materials.Id.

In the instant case, the court relies entirely on the submission of written materials.Accordingly, Plaintiffs"need only make out a prima facie case of personal jurisdiction."Hyatt Int'l Corp. v. Coco,302 F.3d 707, 713(7th Cir.2002).In evaluating whether the prima facie standard has been satisfied, the court accepts the uncontroverted allegations in Plaintiffs' Complaint as true and resolves any factual disputes regarding relevant facts in Plaintiffs' favor.Purdue,338 F.3d at 782;see alsoJohn Walker & Sons, Ltd. v. DeMert & Dougherty, Inc.,821 F.2d 399, 402(7th Cir.1987).

II.Facts

The court accepts the following facts as true for purposes of the present motion.Any factual disputes between the parties have been resolved in favor of Plaintiffs.

A. Qarmat Ali

The events giving rise to this action took place in southern Iraq.As part of Project Restore Iraqi Oil ("Project RIO"), Defendants were contracted by the United States government to repair the water facility treatment plant at Qarmat Ali, so that the facility could once again be used to inject water into oil wells and help resume Iraqi oil production.(Third Amended Complaint ("Complaint")¶ 1.1).Plaintiffs, members of the Indiana National Guard who had been deployed to Iraq, were assigned to protect Defendants' employees from insurgents.(Id.¶ 1.2).Herb Meyers, KBR's Project Manager for Project RIO, and Leon Cater, KBR Superintendent, both knew that Plaintiffs were from Indiana.(Affidavit of John Ezell ("Ezell Aff.")¶¶ 13, 14).

Defendants' employees interacted frequently with Plaintiffs while working at Qarmat Ali.(See, e.g., id.¶ 4).In addition to these informal interactions, Defendants' employees were included in pre-mission meetings wherein special needs and concerns were raised.(James Gentry Deposition ("Gentry Dep.")at 61-62).To the extent that any individual in a patrol would have had knowledge concerning harmful chemicals, it would have been incumbent on that individual, as part of the overall mission, to share that information.(Id.).Defendants' employees were also expected to inform Plaintiffs of known dangers in each morning's "battle update brief."(Id. at 63).

While at Qarmat Ali, Plaintiffs were exposed to sodium dichromate, a toxic chemical used at the facility as an anti-corrosive and containing nearly pure hexavalent chromium.(Complaint¶ 1.2).Hexavalent chromium is one of the most potent carcinogens and mutagenic substances known to man and can enter the human body by inhalation, ingestion, and absorption through the skin.(Id.¶ 4.9).Humans exposed to hexavalent chromium often exhibit nasal bleeding, known as "chrome nose."(Id.).Hexavalent chromium can cause severe damage to the liver and kidneys, depress the immune system, and create a heightened risk of cancer.(Id.).

Defendants were aware of the presence of sodium dichromate at Qarmat Ali in April of 2003, long before Plaintiffs ever arrived at the facility.(Id.¶ 4.2).Once Plaintiffs did arrive at Qarmat Ali and began experiencing "chrome nose,"Defendants' managers told them that it was simply an effect of the "dry desert air" and that they must be "allergic to sand."(Id.¶ 1.2).Plaintiffs were repeatedly told that there was no danger at Qarmat Ali, even after Defendants knew that blood testing of American civilians at Qarmat Ali confirmed elevated chromium levels.(Id.).

As documented by KBR managers, sixty percent of the workers at Qarmat Ali reported symptoms of acute poisoning by the beginning of August 2003.(Id.¶ 4.3).In August 2003, KBR managers conducted an inspection of Qarmat Ali in full "Level C" environmental protection gear, including suits protecting against even skin exposure.(Id.).Protective gear was not provided to Plaintiffs.(Id.).Work was stopped at Qarmat Ali in September 2003.(Id.¶ 4.3).

B.Defendants' Contacts with the State of Indiana

1.KBR

KBR is a corporation formed under the laws of the State of Delaware and its principal place of business is in Houston, Texas.KBR was formed in 2006 as part of the spin-off of KBR from Halliburton Company.KBR is the ultimate parent of Kellogg, KBR Technical, OAS, and SEII.(Affidavit of Mark Lowes ("Lowes Aff.")¶ 6).As an individual company, KBR has no employees and does not provide or market any services.(KBR's Answers to Interrogatories¶ 6, 14).KBR is not registered to do business in Indiana, maintains no offices or other facilities in Indiana, and does not have bank accounts in Indiana.(LowesAff. ¶ 7).

2.Kellogg

Kellogg was formed under the laws of the State of Delaware and maintains its principal place of business in Houston, Texas.Kellogg is the operating company and contracting entity for KBR's Government & Infrastructure business unit, which is an engineering, construction, and services contractor for public sector and private clients worldwide.(Id.¶ 8).This is the entity that held the government contract underlying Defendants' work at Qarmat Ali and giving rise to this litigation.(Lowes Dep.at 11, 71).Kellogg management directed the activities at Qarmat Ali, whereas KBR Technical, OAS, and SEII provided employees necessary to complete Project RIO.(Id. at 25).

Kellogg registered to do business in Indiana on April 4, 2003, and has maintained its Certificate of Authority since that date.(LowesAff. ¶ 9).Kellogg held a contract with the United States Army Corp of Engineers based out of Louisville, Kentucky from approximately 1998 to November 2003, which was a job order contract for maintenance and repair work at Grissom Air Force Base (located in Indiana) and a limited number of other sites in Indiana.(Id.¶ 9).Although it is not certain, Kellogg believes it may have hired local labor to help execute this contract.(Lowes Dep.at 56).Kellogg held a second contract with the United States Army to provide training at Camp...