Th Agr. & Nutrition v. Ace European Group Ltd.
| Citation | 416 F.Supp.2d 1054 |
| Decision Date | 17 February 2006 |
| Docket Number | No. 05-2423-JWL.,05-2423-JWL. |
| Parties | TH AGRICULTURE & NUTRITION, L.L.C., Plaintiff, v. ACE EUROPEAN GROUP LIMITED, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Kenneth H. Frenchman, Robin L. Cohen, Dickstein Shapiro Morin & Oshinsky LLP, New York, NY, Michael J. Abrams, Stacy M. Andreas, Lathrop & Gage, LC, Kansas City, MO, for Plaintiff.
Karalee C. Morell, Richard A. Ifft, Thomas W. Brunner, Wiley, Rein & Fielding, Washington, DC, Dan Biles, Gates, Biles, Shields & Ryan, PA, Michael G. Norris, Norris & Keplinger, L.L.C., Neely L. Fedde, Timothy M. O'Brien, Shook, Hardy & Bacon L.L.P., Overland Park, KS, C. Kinnier Lastimosa, Kirk C. Jenkins, Richard J. Geddes, Sedgwick, Detert, Moran & Arnold LLP, Chicago, IL, for Defendants.
In this lawsuit plaintiff TH Agriculture & Nutrition, L.L.C. (THAN) seeks damages and declaratory relief for the defendants' alleged breach of insurance policies arising from thousands of lawsuits brought against THAN throughout the United States relating to the claimants' exposure to asbestos. Defendants are thirteen European insurance companies which subscribed to the primary and excess general liability insurance policies known as the World-Wide Liability Insurance Programme (the Programme). The Programme provided worldwide coverage to Koninklijke Philips Electronics N.V. (Philips) and its direct and indirect subsidiaries, including THAN.
This matter comes before the court on the motions to dismiss of Certain Insurers,1 Royal & Sun Alliance Insurance (Global) Ltd. (Royal), and XL Insurance Company Ltd. (XL) (Does. 24, 26 & 29), and THAN's related motion to strike the declaration of Th. M. de Boer (Doc. 50). For the reasons explained below, defendants motions are granted on the grounds of a lack of personal jurisdiction and improper venue. THAN's motion to strike is denied in the sense that the court will not strike Mr. de Boer's affidavit but the motion is granted in the sense that the court will allow THAN to file a surreply; therefore, the court will consider the contents of THAN's surreply.
THAN is a limited liability company organized and existing under the laws of Delaware with its principal place of business located in Lenexa, Kansas. THAN is a subsidiary of Philips Electronics North America Corporation (PENAC), which in turn is a subsidiary of Philips. Defendants consist of thirteen insurance companies, including five from The Netherlands, six from the United Kingdom, one from Germany, and one of which is incorporated in Belgium with its principal place of business in The Netherlands. Defendants provided worldwide primary and excess coverage to Philips for the period from December 31, 1997, through December 31, 2001. THAN is insured under the policies by virtue of its nature as a direct or indirect subsidiary of Philips.
THAN has been named as a defendant or co-defendant in more than 14,000 asbestos claims filed in various state and federal courts across the United States. Some of those claims have been dismissed, THAN has settled other claims, and more than 11,000 claims remain pending against THAN. Certain Insurers and Royal have instituted litigation against Philips, PNAC, and THAN in The Netherlands seeking confirmation of their rescission of the Programme on the grounds that Philips improperly failed to disclose relevant information known to it regarding the asbestos claims. Meanwhile, THAN brought this lawsuit seeking indemnification and its costs of defense relating to the asbestos claims.
Defendants now move to dismiss THAN's claims against them. They ask the court to dismiss this case on the following grounds: (1) lack of personal jurisdiction; (2) improper venue in light of a forum selection clause designating The Netherlands as the jurisdiction in which to resolve the parties' disputes; and (3) foram non conveniens.2
For the reasons explained below, the court concludes that it lacks personal jurisdiction over defendants because although they have minimum contacts with the state of Kansas, those contacts are so minimal that asserting jurisdiction over them would violate traditional notions of fair play and substantial justice largely because the international nature of this dispute implicates the policy interests of The Netherlands and because of the interstate judicial system's interest in efficiently resolving this dispute to avoid duplicative litigation. Even if this court could exercise personal jurisdiction over defendants, it would dismiss this case for improper venue because the law of The Netherlands governs the interpretation of the forum selection clause and, under Dutch law, the clause is mandatory and enforceable. The court further notes that it rejects defendants' forum non conveniens arguments.
"The burden of establishing personal jurisdiction over the defendant is on the plaintiff." Bell Helicopter Textron, Inc. v. Heligwest Int'l, Ltd., 385 F.3d 1291, 1295 (10th Cir.2004). When the evidence presented on the motion to dismiss consists of affidavits and other written materials, as is the case here, the plaintiff need only make a prima facie showing of personal jurisdiction. Id. "The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998). "In order to defeat a plaintiff's prima facie showing of jurisdiction, a defendant must present a compelling case demonstrating that the presence of some other considerations would render jurisdiction unreasonable." Id. (quotation omitted). The court "must resolve all factual disputes in favor of the plaintiff." Bell Helicopter Textron, 385 F.3d at 1295.
To obtain personal jurisdiction over a nonresident defendant in a diversity action, the plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment. Pro Axess, Inc. v. Orlux Distrib'n, Inc., 428 F.3d 1270, 1276 (10th Cir.2005). "Because the Kansas long-arm statute is construed liberally so as to allow jurisdiction to the full extent permitted by due process, we proceed directly to the constitutional issue." OMI Holdings, 149 F.3d at 1090; accord Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994).
"The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which [the defendant] has established no meaningful `contacts, ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). "[A]n analysis of whether a court's exercise of specific personal jurisdiction comports with the Due Process Clause is a two-step inquiry." Pro Axess, 428 F.3d at 1276. The court first considers whether the defendant has minimum contacts with the forum state in the sense that "the defendant's conduct and connection with the forum State are such that [the defendant] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). If the defendant's actions create sufficient minimum contacts, the court then considers whether the exercise of personal jurisdiction over the defendant offends "traditional notions of fair play and substantial justice." Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).
The "minimum contacts" standard may be met in either of two ways. Bell Helicopter Textron, 385 F.3d at 1296. The court may exercise general jurisdiction if the defendant has "continuous and systematic general business contacts" with the forum state. Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Or, if the defendant has purposefully directed its activities at residents of the forum, the court may exercise specific jurisdiction in cases that arise out of or relate to those activities. Id. (quoting Burger King, 471 U.S. at 472-73, 105 S.Ct. 2174). In this case, THAN has made no colorable showing that any of the defendants have continuous and systematic contacts with Kansas. Thus, the court confines its analysis to the minimum contacts inquiry for specific jurisdiction.
To support specific jurisdiction, there must be "some act by which the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). This requirement precludes personal jurisdiction as the result of "random, fortuitous, or attenuated contacts." Burger King, 471 U.S. at 475, 105 S.Ct. 2174. "A defendant's contacts are sufficient if the defendant purposefully directed its activities at residents of the forum, and ... the plaintiff's claim arises out of or results from actions by the defendant [it]self that create a substantial connection with the forum state." Pro Axess, 428 F.3d at 1277 (quotation omitted). "Whether a non-resident defendant has the requisite minimum contacts with the forum state to establish in personam jurisdiction must be decided on the particular facts of each case." Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996); accord Benton v. Cameco Corp., 375 F.3d 1070, 1076 (10th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1826, 161 L.Ed.2d 723 (2005).
In this case, defendants' sole relevant contact with Kansas is the...
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