Myers v. Johns-Manville Sales Corp.
| Decision Date | 24 October 1984 |
| Docket Number | Civil-LV 84-125,Civil-LV 83-624,Civil-LV 82-585,No. Civil-LV 82-417,Civil-LV 83-371,Civil-LV 83-521,Civil-LV 83-623,HEC and Civil-LV 84-168,Civil-LV 83-686,Civil-LV 82-417 |
| Citation | 600 F. Supp. 977 |
| Court | U.S. District Court — District of Nevada |
| Parties | William MYERS and Joyce Myers, Plaintiffs, v. JOHNS MANVILLE SALES CORPORATION, Fibreboard Corporation, et al., Defendants. Lester Earl THOMPSON and Loretta Sue Thompson, Plaintiffs, v. FIBREBOARD CORPORATION, et al., Defendants. Robert M. JOHNSON and Linda Johnson, Plaintiffs, v. FIBREBOARD CORPORATION (successor to Plant & Rubber Asbestos Company), et al., Defendants. Joe AZEVEDO and Karen Azevedo, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. Kelton M. REEVES and Marlene Reeves, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. H.K. PORTER COMPANY, INC., a corporation, Cross-Complainant, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Cross-Defendants. (Two Cases) Robert Vincent AFFLERBACH and Callie Ann Afflerbach, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. Richard Glen OWENS and Peggy Ann Owens, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. Joe AZEVEDO and Karen Azevedo, Plaintiffs, v. KEENE CORPORATION (successor to Baldwin-Ehret-Hill Company, BaldwinHill, Inc., Ehret Magnesia Manufacturing Company, Keene Building Products), et al., Defendants. Jack E. MALLORY and Nenia Mallory, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., (successor to Armstrong Cork Company), et al., Defendants. |
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Russell W. Budd, Frederick M. Baron & Associates, Dallas, Tex., Richard Myers, Crockett & Myers, Las Vegas, Nev., for plaintiffs.
Richard P. Wait, Reno, Nev., for GAF Corp.
Mullally & Cederborg, Oakland, Cal., John Curtas, Las Vegas, Nev., for Keene Corp.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, Nev., for Nicolet, Inc.
Thomas Kummer, Vargas & Bartlett, Las Vegas, Nev., for Owens-Corning Fiberglas Corp.
Marvin Morganstein, Morganstein, Ladd & Jubelirer, San Francisco, Cal., Samuel Lionel, Lionel, Sawyer & Collins, Las Vegas, Nev., for Owens Illinois, Inc.
James Olson, Rawlings, Olson & Cannon, Las Vegas, Nev., for Pittsburgh Corning Corp.
Fred B. Belanger, Kenneth B. Prindle, Kevin Kallberg, Schell & Delmar, Los Angeles, Cal., Kirk Lenhard, Sully & Lenhard, Las Vegas, Nev., for H.K. Porter Co., Inc.
Monique Laxalt Urza, Walther, Key Maupin, Oats, Cox, Lee & Klaich, Reno, Nev., for Raymark Industries, Inc.
David Johnson, O'Brien & Johnson, Las Vegas, Nev., for Standard Insulation.
Neils Pearson, Las Vegas, Nev., for Acands, Inc. David E. Campana, Morgan, Wenzel & McNicholas, Los Angeles, Cal., Pat Fitzgibbons, Fitzgibbons, Cobb & Morrell, Las Vegas, Nev., Gudmundson, Siggins & Stone, San Francisco, Cal., Evans & Standford, Samuel Lionel, Lionel, Sawyer & Collins, Las Vegas, Nev., for Armstrong World Industries.
B. Alan McKissick, Beckly, Singleton, Delanoy & Jemison, Las Vegas, Nev., for Celotex Corp.
George R. Lyles, Las Vegas, Nev., for Certainteed Corp.
Julian Sourwine, Fahrenkopf-Mortimer, Sourwine, Mousel & Sloane, Reno, Nev., for Combustion Engineering, Inc.
James Shields Beasley, Beasley & Holden, Reno, Nev., for Crown Cork and Seal Co., Inc.
Earl Ayers, Las Vegas, Nev., for Eagle-Picher Industries.
Robert A. McQuaid, Jr., Shamberger, Georgeson, McQuaid & Thompson, Chtd., Reno, Nev., for Fibreboard Corp.
James Pico, Dickerson, Miles, Pico & Mitchell, Las Vegas, Nev., for Forty-Eight Insulations, Inc.
IT IS HEREBY ORDERED that an evidentiary hearing be held on JANUARY 7, 1985, 9:30 A.M. for the purpose of determining the power of this Court to exercise in personam jurisdiction over various foreign corporations which are named as defendants in the present action. The following order-memorandum sets forth the law that shall govern the legal issues raised by the various motions to dismiss for lack of personal jurisdiction in the consolidated asbestos-personal injury cases now before this Court. Following a brief factual summary, the law will be addressed under three main classifications: (1) plaintiff's burden of proof; (2) personal jurisdiction under Nevada's long-arm statute; and (3) Due Process. The parties should prepare and present their evidence of jurisdictional facts in accordance with this order.
The plaintiffs name multiple corporate defendants in the consolidated personal injury actions now before this Court. The complaints claim relief for negligence, strict products liability, implied warranty and exemplary damages in connection with plaintiffs' alleged prolonged exposure to asbestos and asbestos-containing products. Several of the named defendants have made Motions to Dismiss for Lack of Personal Jurisdiction. These motions are currently under submission.
Prior to trial, a defendant may challenge the court's jurisdiction over the defendant, pursuant to Fed.R.Civ.P. 12(b)(2). The plaintiff bears the burden of establishing that the court has jurisdiction over each defendant. Pocahontas First Corp. v. Venture Planning Group, 572 F.Supp. 503, 505 (D.Nev.1983). Because no statute dictates the procedure to be followed in such instances, the trial court is allowed to determine how it will resolve the issue. Data Disc, Inc. v. Systems Technology Assocs., 557 F.2d 1280, 1285 (9th Cir.1977); Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 728-729, 83 L.Ed. 1111 (1939). The plaintiff's burden varies in difficulty according to the limits imposed by the court on the pretrial proceedings.
The court has the following procedural options for the resolution of personal jurisdiction questions: (1) determine the matter on the basis of sworn affidavits and a pretrial motion hearing; (2) defer the decision until the parties have conducted discovery of jurisdictional facts and allow both sides a full evidentiary hearing wherein evidence of the jurisdictional facts may be presented;1 or, (3) if the jurisdictional facts are intertwined with the merits, the court may defer a determination of the question until trial on the merits. Data Disc at 1285, 1286 n. 2; Pena v. Valo, 563 F.Supp. 742, 746 (C.D.Cal.1983).
If the court confines the parties to the use of affidavits alone or with discovery materials, the plaintiff need only make a prima facie showing of jurisdictional facts to prevail over a motion to dismiss. Data Disc at 1285; Pena at 746. In Data Disc, Judge Wallace notes that when the parties are limited to such written proof, the defendant could obtain dismissal merely through the production of opposing affidavits if the plaintiff's burden were any greater. Id.
When the facts alleged in the plaintiff's complaint and supporting affidavits are controverted by the defendant's affidavits, the conflict is resolved in the plaintiff's favor for purposes of establishing a prima facie case. Pocahontas First Corp. v. Venture Planning Group, 572 F.Supp. 503, 505 (D.Nev.1983). This is not to say that a prima facie showing alone guarantees a trial on the merits. If the materials received by the court reveal controverted questions of fact and issues of credibility bearing on the jurisdictional question, the court may, in its discretion, resolve the disputed issues with the aid of additional evidence taken at a preliminary hearing. Data Disc at 1285. On such occasions, the plaintiff is required to establish jurisdiction by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Similarly, if the court elects not to rely on written materials only and determines that the jurisdictional question will not be resolved until trial on the merits, the plaintiff's burden is augmented to a showing by a preponderance of the evidence. See Pena v. Valo, 563 F.Supp. at 746. Consequently, until the eventual pretrial hearing or trial on the merits, a prima facie showing suffices. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981).
In the cases at hand, the Motions to Dismiss for lack of in personam jurisdiction were submitted for decision on the basis of affidavits and a pretrial motion hearing. When the court chooses to decide the pretrial jurisdiction question on the basis of affidavits, it may also consider the allegations contained in the complaint. See Pocahontas at 506; Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87, 92 (2d Cir.1975). The allegations found in the affidavits and complaint may not be merely conclusory, but must assert particular jurisdictional facts which establish the necessary ties between the defendant and the forum state. Pocahontas at 506; Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1208 n. 5 (9th Cir.1980). Accordingly, if the decision were made on the basis of such evidence alone, plaintiffs would merely have to make a prima facie showing of personal jurisdiction to prevail over the defendant's motion at this stage of the proceeding.
However, because there is a need in the present cases to further develop the jurisdictional facts, a pretrial evidentiary hearing will be held on the question of personal jurisdiction. The parties may then present evidence concerning the Court's exercise of in personam jurisdiction over the named defendants. This will enable the Court to make a proper determination of the issue. Because an evidentiary hearing goes beyond a resolution of the question solely on the basis of the parties' pleadings, affidavits and a motion hearing, the plaintiffs must establish jurisdiction by a preponderance of the evidence.
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