Federal Court Denies Defendants’ Motion to Dismiss on Jurisdiction Without Prejudice U.S. District Court for the Middle District of Florida, Tampa Division. January 12, 2017

On September 26, 2016, Plaintiff Marc Killam filed suit in the Thirteenth Judicial Circuit in and for Hilsborough County, Florida against various defendants after learning of his asbestosis diagnosis. Killam alleged he was exposed to asbestos through his Naval Service, from 1973-77 aboard the USS McCandless while at sea and in the Philadelphia Navy Yard. Here, Killam claims a number of defendants manufactured, sold, distributed, installed, or promoted the asbestos products with which he came into contact. He also alleged, that from 1978-80, as an auto mechanic, he breathed asbestos dust emanating from products manufactured by additional defendants.

The defendants removed the case to the U.S. District Court for the Middle District of Florida, Tampa Division on October 13, 2016 pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. Killam sought an order of remand which was denied. The defendants then filed a motion to dismiss on a variety of substantive and procedural grounds and argued that the court lacked personal jurisdiction, and subsequently, sought dismissal under Rule 12(b)(2). Fed. R. Civ. P.

Under Rule 12(b)(2), a plaintiff seeking to assert personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict. In the current case,  the court noted that because the complaint was filed in state court and Killam presumably did not anticipate removal predicated upon federal officer jurisdiction, the complaint is devoid of factual allegations to satisfy Rule 12(b)(2) or other federal requirements (such as constitutionally minimum contacts and due process concerns of fair play and substantial justice).

Accordingly, the court agreed that the plaintiff’s complaint, as pled, did not contain sufficient factual allegations regarding personal jurisdiction. However, because the complaint was plucked from state court and thrust into the federal forum, the court sua sponte granted Killam the opportunity to file an amended complaint by January 30, 2017, containing specific allegations that provide the court with a basis for exercising personal jurisdiction over each named defendant. The court further noted that in the instance any defendant wishes to challenge the assertion of personal jurisdiction in response to the amended complaint, that the defendant should provide specific arguments and attach an affidavit to the motion to dismiss.

In addition to this decision, the court mentioned some guiding principles for Killam moving forward which included the following: (1) Federal Rule of Civil Procedure 8 requires that a complaint contain a short and plain statement of the claim demonstrating that the plaintiff is entitled to relief; (2) Rule 9(b) provides that in allegations of fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake; and (3) in preparing his amended complaint, and particularly with respect to any fraud claims, Killam is instructed to provide specific allegations giving each defendant notice of the conduct in question that may entitle Killam to relief. Killam is not permitted to “lump” all defendants together in “boundless, amorphous general allegations of fraud.

Read the full decision here.


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