Opinion
Case No. 18-cv-3495 (JNE/KMM)
2019-11-25
IN RE MUNICIPAL STORMWATER POND
Carl Richard Hansen, Winthrop & Weinstine, Carolyn G. Anderson, Zimmerman Reed, PLLP, Craig A. Buske, Shulman & Buske PLLC, Daniel R. Shulman, Lathrop GPM LLP, David L. Shulman, Shulman & Buske PLLC, Diana Gjonaj, Pro Hac Vice, Weitz & Luxenberg, P.C., Detroit, MI, Edan Rotenberg, Pro Hac Vice, New York, NY, Janet C. Evans, Christensen & Laue PLLC, Edina, MN, June Pineda Hoidal, Zimmerman Reed LLP, Minneapolis, MN, Nancy Christensen, Pro Hac Vice, Weitz & Luxenberg, P.C., New York, NY, Richard R. Hansen, Fredrikson & Byron, Mpls, MN, Robin Lynn Greenwald, Pro Hac Vice, Weitz & Luxenberg, P.C., New York, NY, Timothy S Christensen, Ratwik Roszak & Maloney, Nancy Quattlebaum Burke, Saul Ewing Arnstein & Lehr LLP, Minneapolis, MN, for In Re Municipal Stormwater Pond.
Carl Richard Hansen, Winthrop & Weinstine, Carolyn G. Anderson, Zimmerman Reed, PLLP, Craig A. Buske, Shulman & Buske PLLC, Daniel R. Shulman, Lathrop GPM LLP, David L. Shulman, Shulman & Buske PLLC, Diana Gjonaj, Pro Hac Vice, Weitz & Luxenberg, P.C., Detroit, MI, Edan Rotenberg, Pro Hac Vice, New York, NY, Janet C. Evans, Christensen & Laue PLLC, Edina, MN, June Pineda Hoidal, Zimmerman Reed LLP, Minneapolis, MN, Nancy Christensen, Pro Hac Vice, Weitz & Luxenberg, P.C., New York, NY, Richard R. Hansen, Fredrikson & Byron, Mpls, MN, Robin Lynn Greenwald, Pro Hac Vice, Weitz & Luxenberg, P.C., New York, NY, Timothy S Christensen, Ratwik Roszak & Maloney, Nancy Quattlebaum Burke, Saul Ewing Arnstein & Lehr LLP, Minneapolis, MN, for In Re Municipal Stormwater Pond.
ORDER
JOAN N. ERICKSEN, United States District Judge
The consolidated matter captioned above was filed by ten Minnesota cities ("the Cities") against manufacturers and refiners of coal tar products. The Cities claim these products contaminated their stormwater ponds, requiring increased disposal costs. This matter is before the Court on motions to dismiss for lack of personal jurisdiction by Defendants Lone Star Specialty Products, LLC ("Lone Star"), Coopers Creek Chemical Corporation ("Coopers Creek"), Stella-Jones Corp. ("Stella-Jones"), and Beazer East, Inc. ("Beazer"). For the reasons stated below, the Court denies Stella-Jones' motion and grants the motions of Lone Star, Coopers Creek, and Beazer.
BACKGROUND
The Cities refer to the Defendants in two groups: refiners and manufacturers. "The Refiner Defendants take raw or crude coal tar—a toxic material left over from coal coking—and refine it into a variety of products, including a product manufactured, marketed, and sold specifically to be used as the binding agent in pavement sealants." Am. Compl. ¶ 2. Manufacturer Defendants used the refined coal tar to produce the pavement sealants that allegedly contaminated the Cities' stormwater ponds. Am. Compl. ¶¶ 11, 22. The Cities claim that Stella-Jones and Lone Star are refiners while Beazer and Coopers Creek are both refiners and manufacturers. Am. Compl. ¶¶ 2, 11.
The Cities allege that Stella-Jones, Beazer, Coopers Creek, and Lone Star have varying degrees of contact with Minnesota. Each is discussed in turn.
The Cities claim Stella-Jones "currently maintain[s] a place of business in Duluth, Minnesota." Am. Compl. ¶ 37. Stella Jones asserts it closed a railroad tie recycling facility in Minnesota in 2012 and does not currently own any real estate or business here. ECF No. 129, Goeller Decl., Ex. A at 2–3. Stella-Jones does not deny it is registered to do business in Minnesota and the Cities served a registered agent for Stella-Jones in St. Paul, Minnesota on January 10, 2019. ECF No. 10, Summons.
The Cities claim Beazer's predecessor company owned a coking plant in Minnesota that produced refined coal tar between 1817 and 1981. Am. Compl. ¶ 30. The Cities assert "some of the coal tar pitch refined in St. Paul was made into pavement sealants, applied in Minnesota, and released PAHs that now contaminate Plaintiff's ponds." Am. Compl. ¶ 30.
PAHs are Polycyclic Aromatic Hydrocarbons that contain high levels of toxic chemicals and are present in coal tar pavement sealants. Am. Compl. ¶ 4.
Beazer submitted a declaration stating its coking plant stopped operations in 1979 and Beazer sold the land the plant was located on in 1982. ECF No. 126, Wright Decl. ¶¶ 8, 14. Beazer asserts it made coal tar pavement sealants outside of Minnesota until 1988, at which point it sold all of its assets in coal tar refining and pavement sealant businesses. ECF No. 126, Wright Decl. ¶¶ 11, 13. Beazer also claims it has not located any sales records of coal tar pavement sealants to Minnesota customers. ECF No. 126, Wright Decl. ¶ 12. Finally, Beazer states it withdrew its registration to do business in Minnesota in 2002. ECF No. 126, Wright Decl. ¶ 16.
The Cities assert Lone Star and Coopers Creek are connected to Minnesota through the Pavement Coatings Technology Council ("PCTC"), of which they are both members. Am. Compl. ¶ 90. The Cities assert PCTC "is an association composed primarily of coal tar refiners and coal tar pavement sealant manufacturers." Am. Compl. ¶ 89. The Cities contend PCTC engaged in various "wrongful and tortious actions" "to continue selling their defective, environmentally damaging Coal Tar Pavement Sealants in Minnesota and nationwide." ECF No. 149 at 11; see also Am. Compl. ¶¶ 90, 95–97, 280, 283–92.
The Cities allege PCTC and its members "falsely claim that coal tar pavement sealants are safe and do not cause pollution" despite research by the United States Geological Services ("USGS") showing otherwise. Compl. at 14, ¶ 86. The Cities claim USGS research showed that as "Coal Tar Pavement Sealant products degraded, PAHs were being released from the Refined Coal Tar contained in their sealant and entering the environment at levels that caused harm to the environment, particularly Plaintiff's stormwater ponds and other stormwater infrastructure devices." Am. Compl. at 14, ¶ 86.
The Cities have numerous allegations as to how PCTC has advocated for the use of refined coal tar and the coal tar pavement sealants at issue. PCTC purportedly helped with "the design of coal tar sealants, creation of guidance for use of coal tar sealants, and integration of refined coal tar into the design of coal tar sealants." Am. Compl. ¶ 92. PCTC also allegedly publicly endorsed these sealants. For instance, the Cities claim PCTC's executive director stated: "PCTC member companies and contractors have safely used this product for six decades and have no reason to think there are any adverse effects when used according to manufacturers recommended specifications." Am. Compl. ¶ 96. Similarly, the Cities allege PCTC submitted letters and comments to various Minnesota cities on the safety of using coal tar pavement sealants. Am. Compl. ¶¶ 97–99. The Cities finally claim PCTC has wrongly criticized USGS' research as "distorted, faulty, unreliable, unsound ... [and] scientifically indefensible ...." Am. Compl. ¶ 113.
The Cities assert that certain Defendants "have made false statements that are similar or identical to those of PCTC." Am. Compl. ¶ 127. Specific to the Defendants involved in these motions, the Cities allege Coopers Creek's president criticized USGS' research and described its coal tar pavement sealants as "protective coatings" and "superior to asphalt driveway sealers." Am. Compl. ¶¶ 129, 247. The Cities also claim Lone Star represents to consumers that these sealants are part of "a good preventative maintenance plan," are appropriate to protect paved surfaces, and conform to certain standards. Am. Compl. ¶ 250.
Based on the above allegations, the Cities contend the Court has personal jurisdiction over Stella-Jones, Beazer, Lone-Star, and Coopers Creek.
STANDARD OF REVIEW
Defendants argue this case should be dismissed for lack of personal jurisdiction. To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the Cities must make a prima facie showing that personal jurisdiction exists. Fastpath, Inc. v. Arbela Techs. Corp. , 760 F.3d 816, 820 (8th Cir. 2014). Although the evidentiary showing required at the prima facie stage is minimal, the "showing must be tested, not by the pleadings alone, but by the affidavits and exhibits supporting or opposing the motion." K–V Pharm. Co. v. J. Uriach & CIA, S.A. , 648 F.3d 588, 592 (8th Cir. 2011) (internal quotations and citations omitted). In determining whether the Cities have set forth a prima facie case, the Court must view all evidence in the light most favorable to the Cities and resolve all factual disputes in their favor. See id.
A federal court may assume jurisdiction over a nonresident defendant "only to the extent permitted by the long-arm statute of the forum state and by the Due Process Clause." Romak USA, Inc. v. Rich , 384 F.3d 979, 984 (8th Cir. 2004) (quotations omitted). Because Minnesota's long-arm statute "confers jurisdiction to the fullest extent permitted by the Due Process Clause," the Court need only consider due process requirements in its personal jurisdiction analysis. See Coen v. Coen , 509 F.3d 900, 905 (8th Cir. 2007).
To satisfy due process, a defendant must have sufficient "minimum contacts with [Minnesota] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotations omitted); see also World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291–92, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). "Minimum contacts is based on the notion that those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts as a general matter." Fastpath , 760 F.3d at 820 (internal quotations and citations omitted). "Sufficient contacts exist when [a] defendant's conduct and connection with the forum state are such that [it] should reasonably anticipate being haled into court there[.]" Coen , 509 F.3d at 905 (quotations omitted). Such contacts 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." Fastpath , 760 F.3d at 821 (internal quotations and citations omitted).
The "purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as the result of random, fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person." Stanton v. St. Jude Med., Inc. , 340 F.3d 690, 693–94 (8th Cir. 2003) (internal quotations and citations omitted). "For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State." Walden v. Fiore , 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). This means that "the relationship must arise out of contacts that the ‘defendant himself’ creates with the forum State." Id. (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ). Contacts between the plaintiff and the forum State do not satisfy this inquiry. Id.
Personal jurisdiction based on contacts with the forum state can be either general or specific. "General jurisdiction" is established when an entity has "continuous and systematic" contacts with the forum state sufficient to render the foreign entity "at home" in the forum state. Goodyear Dunlop Tires Operations v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). "Specific jurisdiction" is established when the contacts with the forum state specifically relate to the underlying controversy. Id.
Whether specific or general jurisdiction is asserted, the Eighth Circuit considers five factors in determining the sufficiency of a defendant's conduct with the forum state: (1) the nature and quality of the contacts; (2) the quantity of the contacts; (3) the relation between the contacts and the action; (4) the forum state's interest in the litigation; and (5) the convenience of the parties. See Downing v. Goldman Phipps, PLLC , 764 F.3d 906, 912 (8th Cir. 2014). The fourth and fifth factors are secondary and not determinative to the analysis. Id. The first two factors relate to general jurisdiction while the third factor applies only to specific jurisdiction and is immaterial for general jurisdiction. See Steinbuch v. Cutler , 518 F.3d 580, 586 (8th Cir. 2008). Because the Eighth Circuit's five-factor test restates some of the factors identified by the Supreme Court, the Court will not separately address the Eighth Circuit's formulation. Needless to say, though, as this Court undertakes the analysis dictated by the Supreme Court, the relevant factors identified by the Eighth Circuit will be considered.
ANALYSIS
The Cities present different arguments as to why each defendant is subject to the Court's jurisdiction: Stella-Jones through its registration to do business in Minnesota, Coopers Creek and Lone Star through a conspiracy- or agency-based theory of jurisdiction, and Beazer through minimum contacts. The Cities request jurisdictional discovery if the Court concludes the pleadings fail to establish personal jurisdiction over any one defendant.
A. Stella-Jones' motion to dismiss
Stella-Jones argues its contacts and registration to do business in Minnesota are insufficient for a Minnesota court to confer personal jurisdiction over it. Typically, the constitutional analysis for personal jurisdiction involves determining whether a defendant has "minimum contacts" with the forum state. But if a defendant consents to jurisdiction, then the minimum-contacts analysis is unnecessary. See Knowlton v. Allied Van Lines, Inc. , 900 F.2d 1196, 1199 (8th Cir. 1990). Consent is an independent basis for the exercise of general personal jurisdiction and may be established in many ways, including as a condition of conducting some activity in the state. See id.
Every non-Minnesota corporation must register an agent, who among other things may receive service of process. Minn. Stat. § 303.06 (2018) (requiring that a foreign corporation "irrevocably consent[ ] to the service of process upon it"); Minn. Stat. § 303.13, subdiv. 1(1) (2018) ("A foreign corporation shall be subject to service of process ... by service on its registered agent ...."). Minnesota has held that there is "no constitutional defect in the assertion of [general personal] jurisdiction based on consent to service of process." Rykoff-Sexton, Inc. v. Am. Appraisal Assocs., Inc. , 469 N.W. 2d 88, 90–91 (Minn. 1991). The Eighth Circuit endorsed the Minnesota Supreme Court's interpretation of Minn. Stat. § 303 by holding that consent by registration is "a traditionally recognized and well-accepted species of general consent." Knowlton , 900 F.2d at 1200.
Stella-Jones is registered to do business in Minnesota, has a registered agent to receive service in Minnesota, and the Cities served this agent in St. Paul, Minnesota on January 10, 2019. ECF No. 10, Summons. Stella Jones has thus consented to general personal jurisdiction in Minnesota.
Stella-Jones argues that, despite the Eighth Circuit's decision in Knowlton , registration to do business under Minn. Stat. § 303 alone cannot satisfy the dictates of due process in light of the Supreme Court's decisions in Goodyear and Daimler .
Other courts have found implied consent under corporate registration statutes is irreconcilable with Daimler and Goodyear. Most notably, the Second Circuit held:
If mere registration and the accompanying appointment of an in-state agent—without an express consent to general jurisdiction—nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler [AG v. Bauman , 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) ]'s ruling would be robbed of meaning by a back-door thief.
Brown v. Lockheed Martin Corp. , 814 F.3d 619, 640 (2d Cir. 2016) ; see also Alvarracin v. Volume Servs, Inc. , 2017 WL 1842701, at *2 (W.D. Mo. May 4, 2017).
While the Court is bound by Knowlton , the Court recognizes Knowlton may not comport with Goodyear and Daimler . The Court would be willing to certify its Order under 28 U.S.C. § 1292(b) if so requested. Section 1292(b) 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, [s]he shall so state in writing in such order.
The party requesting certification "bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted." White v. Nix , 43 F.3d 374, 376 (8th Cir. 1994). "Permission to allow interlocutory appeals should thus be granted sparingly" due to the additional burdens they place on both the courts and the litigants. Union Cnty., Iowa v. Piper Jaffray & Co. , 525 F.3d 643, 646 (8th Cir. 2008) (internal quotations omitted). The issue of consenting to personal jurisdiction by registering to do business, but not actually doing business, in a state seems ripe for the type of appeal envisioned by 28 U.S.C. § 1292(b).
B. Lone Star and Coopers Creek's motions to dismiss
The Cities' claim Lone Star and Coopers Creek conspired through PCTC to commit fraudulent misrepresentation, fraudulent concealment, trespass, consumer fraud in violation of the Minnesota Consumer Fraud Act, and nuisance. Am. Compl. ¶ 283. Alternatively, the Cities claim Lone Star and Coopers Creek directed tortious actions in Minnesota through their agent, PCTC.
"To properly plead civil conspiracy, [the Cities] must allege sufficient facts to allow a reasonable inference that defendants agreed to accomplish an unlawful purpose and took concerted actions to achieve that purpose." Tatone v. SunTrust Mortg., Inc. , 857 F. Supp. 2d 821, 838 (D. Minn. 2012) (applying Minnesota law). In addition, the underlying action must constitute an intentional tort. Id. at 839.
No conspiracy was created through mere membership in PCTC: a trade association is not a "walking conspiracy" of its members. See, e.g. , Consolidated Metal Prods. v. American Petroleum Inst. , 846 F.2d 284, 293–94 & n.30 (5th Cir. 1988) ("[T]he mere showing of relationships between alleged conspirators [in a trade association] is insufficient to imply a conspiracy"); accord Wilk v. American Medical Ass'n , 895 F.2d 352, 374 (7th Cir. 1990), cert. denied , 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 524 (1990). Lone Star and Coopers Creek's membership in PCTC does not automatically impute membership in a civil conspiracy.
Then the question is whether the Cities' allegations show that Lone Star, Coopers Creek, and the rest of PCTC were part of a scheme designed to achieve an unlawful purpose through tortious action. The Cities point to various actions that supposedly show this: petitioning city and state governments to use coal tar pavement sealants, criticizing USGS' research on these sealants, helping design these sealants and providing instructions on their use, and statements on the quality or superiority of these sealants.
The Court first considers allegations of Lone Star and Coopers Creek petitioning local governments and criticizing USGS' research. Lone Star and Coopers Creek, though they are a partnership and corporation respectively, also enjoy First Amendment rights. See First Nat. Bank of Bos. v. Bellotti , 435 U.S. 765, 777, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) ("The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual."). PCTC exercised its First Amendment rights in meeting with government officials, submitting comments to city governments, criticizing USGS' research, and any other action regarding speaking to the government. See Senart v. Mobay Chem. Corp. , 597 F. Supp. 502, 506 (D. Minn. 1984) (stating that parties' actions "taking a particular view in a scientific debate [or] trying to retain a regulatory standard" do not constitute a conspiracy because they are protected by the First Amendment). The same applies to the president of Coopers Creek criticizing and disagreeing with USGS' research. This conclusion stands even if, as the Cities allege, PCTC was motivated by profit in promoting the use of these sealants. See Allied Tube & Conduit Corp. v. Indian Head, Inc. , 486 U.S. 492, 499–500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) ("A publicity campaign directed at the general public, seeking legislation or executive actions, enjoys ... immunity even when the campaign employs unethical and deceptive means."). Allegations of PCTC exercising its First Amendment rights do not establish a civil conspiracy.
The Court then considers allegations of PCTC helping design coal tar pavement sealants and providing instructions on their use. The Court sees no intentional tort or unlawful purpose in these allegations because the Cities do not claim PCTC is doing either action in states where the sealants are banned, like Minnesota.
The Court finally considers allegations of Lone Star and Coopers Creeks' statements on these sealants being described as "protective coatings," "superior," and conforming to ASTM standards. The Cities, like Lone Star and Coopers Creek, claim the sealants "are used to protect paved surfaces"; the Court sees no tortious conduct there. Am. Compl. ¶ 14. Similarly, the Cities do not explain why the sealants meeting ASTM standards is tortious. Finally, Coopers Creek's statements that the sealants are "superior" are puffery; they are not "specific measurable claim[s that can] be reasonably interpreted as an objective fact." Am. Compl. ¶ 247; Am. Italian Pasta Co. v. New World Pasta Co. , 371 F.3d 387, 391 (8th Cir. 2004).
If their conspiracy-based jurisdiction theory fails, the Cities argue the Court has personal jurisdiction over Coopers Creek and Lone Star because they directed intentional, tortious acts at Minnesota through their agent or partner, PCTC. This theory also fails. The Court is doubtful that the allegations show an agency relationship between PCTC and these defendants. Even assuming an agency relationship exists, the Cities' allegations do not show any tortious conduct by the PCTC for the reasons stated above.
The PCTC's actions to petition local governments and criticize USGS research is protected under the First Amendment. Similarly, PCTC helping design these sealants and providing instructions on their use in states where such sealants are legal is not tortious.
In sum, the Cities' conspiracy- and agency-based theories fail because their allegations do not show Lone Star, Coopers Creek, or PCTC committing tortious action or seeking to accomplish an unlawful purpose. Minnesota has an interest in providing a forum for Minnesota plaintiffs harmed by tortfeasors here. But the Cities do not show how Lone Star and Coopers Creek availed themselves of the privilege of conducting activities in Minnesota, or had sufficient contacts, to reasonably anticipate being haled into court here.
The Court notes that Stella-Jones' contacts would not suffice under a conspiracy- or agency-based theory of jurisdiction for the reasons discussed. While there are a few differentiating facts about Stella-Jones, they would not change the Court's analysis.
First, the Cities allege Stella-Jones has misled consumers by presenting its companies "as responsible corporations that are committed to environmental health and safety stewardship, that protect the environment, and whose objectives are to be model corporate citizens, exercising both environmental responsibility and overall integrity." Amend. Compl. ¶ 248. Like the statements of Coopers Creek and Lone Star, any statements Stella-Jones made on environmental or global stewardship are puffery.
Second, the Cities, in their response, claim Stella-Jones has an employee who was the treasurer of PCTC for at least seven years. ECF No. 149 at 10–11. This fact would not change the Court's analysis for Stella-Jones because the Cities' allegations do not show PCTC engaging in any tortious action toward an unlawful purpose.
The conclusion that Stella-Jones would not be subject to the Court's jurisdiction if not for being registered to do business here also supports Stella-Jones seeking certification under 28 U.S.C. § 1292(b).
C. Beazer's motion to dismiss
The Cities contend Beazer established sufficient minimum contacts in Minnesota as a refiner of coal tar and as a manufacturer of coal tar pavement sealants. The Cities point to three contacts Beazer had in Minnesota: (1) a coking plant that refined coal tar until 1981, (2) being registered to do business in Minnesota until 2002, and (3) manufacturing coal tar pavement sealants outside of Minnesota until 1988 that were applied in Minnesota.
First, Beazer's coking plant does not suffice for minimum contacts. This plant produced many byproducts, one of which was unrefined coal tar. ECF No. 166, Beazer Reply at 3–4. This unrefined coal tar was then sold to a customer who could use it in "a variety of products," only one of which was the pavement sealants at issue. Am. Compl. ¶ 2. This connection is too attenuated; the Court cannot determine from the Cities' allegations if Beazer's unrefined coal tar was ever used in another company's coal tar pavement sealant that ultimately contaminated the Cities' stormwater.
Second, Beazer's long-withdrawn business registration does not establish minimum contacts. Beazer withdrew its registration to do business in Minnesota in 2002. ECF No. 126, Wright Decl. ¶ 16. The Cities cite to no authority permitting a plaintiff to establish minimum contacts based on a defendant's consent to receive service in a state sixteen years prior to commencement of litigation.
Third, the Court finds the Cities' argument that Beazer made coal tar pavement sealants outside of Minnesota until 1988 insufficient to confer personal jurisdiction over Beazer. "Minimum contacts must exist either at the time the cause of action arose, the time the suit is filed, or within a reasonable period of time immediately prior to the filing of the lawsuit." Pecoraro v. Sky Ranch for Boys, Inc. , 340 F.3d 558, 562 (8th Cir. 2003). Sealants manufactured in 1988 certainly predate the time this suit was filed, in 2018, and any reasonable period of time prior to the filing of this suit.
The question then is whether Beazer manufacturing sealants until 1988 suffices for minimum contacts at the time the cause of action arose. The Cities fail to specify when their causes of action arose. Regardless, the Cities need to show that Beazer's sealants were applied in the relevant Minnesota cities to cause the harm at issue. The Cities have failed to do so. While the Cities make the threadbare allegation that Beazer "marketed and sold Coal Tar pavement Sealants for application throughout Minnesota," they plead no facts supporting this assertion. Am. Compl. ¶ 182; see K-V Pharm. Co. v. J. Uriach & CIA, S.A. , 648 F.3d 588, 591–92 (8th Cir. 2011) ("To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that personal jurisdiction exists, which is accomplished by pleading sufficient facts to support a reasonable inference that the defendant can be subjected to jurisdiction within the state." (original brackets and internal quotation marks omitted)). In fact, Beazer submitted a declaration stating it has not located any "sales records of Coal Tar Pavement Sealants ... to customers located in Minnesota." ECF No. 126, Wright Decl. ¶ 12. The Cities failed to rebut Beazer's declaration. See Dever v. Hentzen Coatings, Inc. , 380 F.3d 1070, 1073 (8th Cir. 2004) (" ‘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.’ " (quoting Jet Charter Serv., Inc. v. W. Koeck , 907 F.2d 1110, 1112 (11th Cir. 1990) )). The Cities have failed to make a prima facie showing that Beazer's pavement sealants could have caused the harm at issue. As such, Beazer manufacturing coal tar pavement sealants until 1988 does not subject it to jurisdiction here.
For instance, the Cities could have rebutted Beazer's declaration by submitting an affidavit or declaration showing Beazer marketed or sold coal tar pavement sealants into Minnesota through a distributor or other third-party. Similarly, the Cities could have also submitted an affidavit or declaration showing knowledge of even a single Minnesota customer who applied a coal tar pavement sealant Beazer manufactured.
In short, while Minnesota has an interest in providing a forum for Minnesota plaintiffs harmed by tortfeasors here, Beazer's connections to Minnesota are too attenuated to support Beazer anticipating being haled into court here.
D. Jurisdictional Discovery
The Cities request jurisdictional discovery if the Court determines their complaint alleges insufficient facts regarding the contacts Lone Star, Coopers Creek, Stella-Jones, and Beazer have in Minnesota. Specifically, the Cities request discovery into:
Lone Star's, Stella-Jones' and Coopers' engagement with PCTC; Lone Star's, Stella-Jones' and Coopers' knowledge of whether its customers sold products made with their Refined Coal Tar into Minnesota and their assistance to customers in designing products that incorporate Refined Coal Tar;; [sic] and the extent of Beazer's sales of Refined Coal Tar and Coal Tar Pavement Sealant into Minnesota.
ECF No. 149 at 44.
Discovery on personal jurisdiction should be permitted when a plaintiff offers "documentary evidence, and not merely speculations or conclusory allegations," regarding a defendant's contacts with the forum state. Steinbuch v. Cutler , 518 F.3d 580, 589 (8th Cir. 2008) ; see also Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG , 646 F.3d 589, 598 (8th Cir. 2011) ("[W]hen a plaintiff offers only speculation or conclusory assertions about contacts with a forum state, a court is within its discretion in denying jurisdictional discovery." (internal quotation and citation omitted)). The decision to grant jurisdictional discovery is within the court's discretion. Steinbuch , 518 F.3d at 588.
The Cities have not submitted any documentary evidence in support of their request for jurisdictional discovery. For instance, the Cities have not shown what information they hope to find on Lone Star and Coopers Creek's relationship with PCTC that would lead the Court to confer jurisdiction over either party. Similarly, the Cities have not shown why they think there are records of Beazer selling coal tar pavement sealants into Minnesota when Beazer has submitted a declaration stating it has located no records of Minnesota customers for its sealants. See Lexion Med., LLC v. SurgiQuest, Inc. , 8 F. Supp. 3d 1122, 1129–30 (D. Minn. 2014) (denying jurisdictional discovery where plaintiff offered no compelling argument to call into question a sworn affidavit in which defendant denied contacts with Minnesota). The Court denies this request because the Cities fail to offer any reason as to the existence of evidence on these topics and why they think it would change the Court's analysis of the Cities' allegations.
The Court does not address the request as to Stella-Jones because the Court has personal jurisdiction over Stella-Jones.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Lone Star Specialty Products, LLC's Motion to Dismiss Based on Lack of Personal Jurisdiction, ECF No. 103, is GRANTED;
2. Coopers Creek Chemical Corporation's Motion to Dismiss for Lack of Personal Jurisdiction, ECF NO. 109, is GRANTED;
3. Stella-Jones Corporation's Motion to Dismiss for Lack of Personal Jurisdiction, ECF No. 122, is DENIED; and
4. Beazer East, Inc.'s Rule 12(b)(2) Motion to Dismiss, ECF No. 123, is GRANTED.