Campbell v. Acme Insulations, Inc.
Campbell v. Acme Insulations, Inc.
Opinion
¶ 1 The defendant, General Electric (GE), appeals from an order of the circuit court of Cook County denying its motion to dismiss for lack of personal jurisdiction over it in an action brought by the plaintiff, Arlin Campbell, for injuries allegedly resulting from his exposure to asbestos contained in GE's products. 1 For the reasons that follow, we reverse the decision of the circuit court and remand this cause with directions to dismiss GE as a party defendant.
¶ 2 The following factual recitation is derived from the allegations contained in the plaintiff's complaint, GE's motion to dismiss, the parties' subsequent filings, and the exhibits attached thereto.
¶ 3 On May 4, 2017, the plaintiff, a resident of Alabama, filed a complaint in the circuit court alleging that, in December 2016, he was diagnosed with mesothelioma caused by his exposure to asbestos at various jobs in Illinois, Alabama, Louisiana, and Texas between 1961 and 1999. He claimed that asbestos "emanate[ed] from certain products" that he encountered at his various jobs, and that some of the products that he encountered at those jobs were "manufactured, sold, distributed or installed" by GE. Those jobs, according to the complaint, included the plaintiff's sole period of employment in Illinois, when he worked at Republic Steel in Chicago from 1964 to 1965. 2 The complaint did not specifically allege that the plaintiff encountered GE products containing asbestos at Republic Steel.
¶ 4 On June 9, 2017, GE filed a motion to dismiss on the basis that the plaintiff's complaint failed to allege sufficient facts to confer personal jurisdiction upon it under section 2-209 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-209 (West 2016) ), commonly known as the Illinois long-arm statute. 3 GE asserted that it did not consent to the circuit court's jurisdiction, no general personal jurisdiction exists over it, and no specific personal jurisdiction *990 exists because the plaintiff did not allege that he was exposed to asbestos from its products in Illinois.
¶ 5 On August 16, 2017, the plaintiff filed a response to GE's motion, arguing that Illinois has "jurisdiction by necessity" because he was exposed to asbestos in multiple states and there is no single forum in which he could sue every defendant. He further asserted that GE consented to jurisdiction by doing business and having a registered agent in this State, and is subject to the circuit court's general personal jurisdiction due to "systematic and continuous business contacts" that cause GE to be "at home" in Illinois. Finally, the plaintiff contended that GE is subject to the circuit court's specific personal jurisdiction because his discovery deposition, which occurred on July 19 and 20, 2017, established that he was exposed to asbestos from GE products in Illinois. According to the plaintiff, GE manufactured the electric furnaces containing asbestos which were used to melt steel at Republic Steel.
¶ 6 On August 30, 2017, GE filed a reply that included the affidavit of a former employee, Bryan Toll Jr., who attested that between 1959 and 1979, he oversaw the manufacturing of "industrial furnaces" at the plant where GE maintained its industrial heating division. He denied that GE ever manufactured "any industrial furnace product that [met] or resemble[d] the description of 'electric furnaces' * * * as described in [the plaintiff's] deposition," or that GE built furnaces "designed to 'melt steel.' " GE supplemented its reply with the transcript of the plaintiff's evidence deposition, which occurred on September 27, 2017.
¶ 7 On November 7, 2017, the plaintiff filed a supplemental response to GE's motion to dismiss that included an excerpt from a book about electric furnaces that was published in 1914. The excerpt, taken from a chapter titled "Laboratory Furnaces," mentions the "Arsem" furnace, a type of electric furnace that "operat[es] in a vacuum" and was "made in several forms" by GE.
¶ 8 On November 14, 2017, the circuit court denied GE's motion to dismiss in an oral ruling without identifying what basis it found for personal jurisdiction. We granted GE's petition for leave to file an interlocutory appeal pursuant to Supreme Court Rule 306(a)(3) (eff. Nov. 1, 2017).
¶ 9 On appeal, GE contends that the circuit court erred in denying its motion to dismiss where the plaintiff failed to establish personal jurisdiction in Illinois. According to GE, (1) no general personal jurisdiction exists because it is not "at home" in Illinois; (2) it did not consent to jurisdiction in Illinois; and (3) no specific personal jurisdiction over it exists because the plaintiff's injury did not arise from its contacts in Illinois. We agree.
¶ 10 "The plaintiff has the burden of establishing a
prima facie
basis to exercise personal jurisdiction over a nonresident defendant."
Aspen American Insurance Company v. Interstate Warehousing, Inc.
,
*991
Kowal v. Westchester Wheels, Inc.
,
¶ 11 Personal jurisdiction is the authority of the court "to bring a person into its adjudicative process." (Internal quotation marks omitted.)
In re M.W.
,
¶ 12 The federal due process clause ( U.S. Const., amend. XIV, § 1 ) allows a state court to exercise personal jurisdiction over a nonresident defendant only if the defendant has minimum contacts with the state, "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (Internal quotation marks omitted.)
Aspen
,
¶ 13 Turning first to the issue of general personal jurisdiction, the plaintiff contends that GE is subject to jurisdiction in Illinois due to its significant presence and the "large amount of business" that it conducts in this State. GE, in response, argues that general personal jurisdiction is lacking because its business in Illinois represents a relatively small part of its worldwide operations, and neither its headquarters nor principal place of business is located in Illinois.
¶ 14 "Where general jurisdiction exists, the plaintiff may pursue a claim against the defendant even if the conduct of the defendant that is being challenged occurred entirely outside the forum state."
Aspen
,
¶ 15 Based on these principles, we find that GE is not "at home" in Illinois and, therefore, not subject to the circuit court's general personal jurisdiction. The record reveals that GE's place of incorporation is New York and its principal place of business is in Massachusetts. Although GE has been licensed to conduct business in Illinois since 1897, employs 3,000 employees at 30 facilities that it owns, leases, or operates in Illinois, and bases up to 6 business units in this State, we must consider that activity in the context of GE's national and worldwide operations.
Daimler
,
¶ 16 Viewing these circumstances together, we find that the plaintiff has not established that GE's contacts render it "at home" in Illinois, or that exceptional conditions exist that would otherwise support general personal jurisdiction. Cf.
*993
Perkins v. Benguet Consolidated Mining Co.
,
¶ 17 To the extent the plaintiff argues that GE's unrelated business in Illinois constitutes "consent" to the circuit court's jurisdiction in this case, we decline to find that GE consented to be sued in Illinois based on the same activities that we have found to be insufficient to invoke the circuit court's general personal jurisdiction. Nor does the fact that GE has a registered agent for service of process in Illinois show that it consented to jurisdiction in this State. To the contrary, a defendant who has a registered agent neither "consent[s] to general jurisdiction as a condition of doing business in Illinois" nor "waives any due process limitations on this [S]tate's exercise of general jurisdiction."
Aspen
,
¶ 18 Next, we consider whether GE is subject to specific personal jurisdiction in Illinois. Specific jurisdiction exists when there is an affiliation "between the forum and the underlying controversy,"
i.e.
, some activity or occurrence "that takes place in the forum State and is therefore subject to the State's regulation." (Internal quotation marks omitted.)
Goodyear
,
¶ 19 In this case, the plaintiff contends that the circuit court has specific personal jurisdiction over GE because he was exposed to asbestos from GE products in Illinois during his employment at Republic Steel. In support of this claim, the plaintiff relies on testimony from his discovery deposition. However, the transcript of that deposition shows that, initially, he testified that he did not remember what manufacturers produced any of the equipment used at Republic Steel. Later, he expressed his belief that the electric furnaces used for melting steel were manufactured by GE because his brother "worked on furnaces," although the plaintiff acknowledged that no "tags" or "writing" on *994 the furnaces "suggested" they were GE products.
¶ 20 GE, in response, argues that the plaintiff's testimony during his evidence deposition shows that he lacked personal knowledge as to whether the furnaces at Republic Steel were manufactured by GE and, therefore, he cannot establish that specific personal jurisdiction exists. The transcript of the plaintiff's evidence deposition shows that his attorney asked him whether he had "any way of knowing who made any of [the] furnaces" at Republic Steel. In response, he stated, "[n]o, I don't-I can't really say." He added, however, that the furnaces were larger than an "SUV," lined with "brick," and wrapped in metallic insulation.
¶ 21 Pursuant to Supreme Court Rule 212(a)(4) (eff. Jan. 1, 2011), a discovery deposition may be used "for any purpose for which an affidavit may be used." Supreme Court Rule 191(a) (eff. Jan. 4, 2013), in turn, provides that "affidavits submitted in connection with a motion to contest jurisdiction over the person * * * shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; * * * shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." For purposes of a Rule 191(a) affidavit, the "[m]ere allegation that a triable issue of facts exists does not create an issue of fact," and an affidavit will be deemed insufficient if it "shows on its face that [the affiant] could not competently testify at the trial to [the] matters" asserted therein. (Internal quotation marks omitted.)
Stephens v. Northern Indiana Public Service Co.
,
¶ 22 Applying Supreme Court Rule 191(a) to the plaintiff's deposition testimony, we find that he did not establish a basis for the circuit court's specific personal jurisdiction over GE. In his discovery deposition, the plaintiff first denied knowing what manufacturers produced the equipment used at Republic Steel in Illinois, but later he expressed his belief that the electric furnaces used for melting steel were manufactured by GE because his brother "worked on furnaces." He also admitted that no "tags" or "writing" on the furnaces "suggested" they were GE products. In his evidence deposition, the plaintiff admitted that he had no way of knowing who made the furnaces in use at Republic Steel. The plaintiff's deposition testimony, taken in its entirety, shows that he could not competently testify that the furnaces used at Republic Steel were manufactured by GE. His discovery deposition, in fact, suggests that his testimony in that regard is inadmissible hearsay. See Ill. R. Evid. 602 (eff. Jan. 1, 2011) ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.");
Ruprecht Co. v. Sysco Food Services of Seattle, Inc.
,
*995
¶ 23 GE's former employee, Toll, attested that GE never manufactured an electric furnace designed for melting steel. Even if the excerpt proffered by the plaintiff from the 1914 book shows that GE did manufacture such furnaces prior to Toll's tenure at the corporation, nothing in the record, including the plaintiff's description of the furnaces in his evidence deposition, identifies the "vacuum" furnaces described in the book with the furnaces used at Republic Steel. See
Flanders v. California Coastal Communities, Inc.
,
¶ 24 In reaching this conclusion, we reject the plaintiff's argument that, for purposes of specific personal jurisdiction, "[i]t does not matter whether the particular fact pattern that led to [a] plaintiff's injury has the requisite contacts" to the forum state if "the defendant's contacts with the state made it foreseeable for that defendant to defend that type of action in the state in which [the] plaintiff brings it." The plaintiff argues for a "sliding scale" approach to specific personal jurisdiction, where a connection between a plaintiff's claim and the defendant's forum contacts can more readily be established if the defendant has wide-ranging contacts in that forum. In
Bristol-Myers
, however, the United States Supreme Court rejected the notion that specific personal jurisdiction could be asserted under a "sliding scale" theory.
Bristol-Myers
at ----,
¶ 25 As a final matter, the plaintiff argues that jurisdiction in Illinois is appropriate under a doctrine of "jurisdiction by necessity." Under this doctrine, according to the plaintiff, GE is subject to jurisdiction in Illinois because there is no other forum in which he could bring his action against all the defendants. While the plaintiff cites to certain decisions of the United States Supreme Court containing dicta that he construes as showing the Court's implicit recognition that such a doctrine exists, he identifies no case in which the Court adopted the doctrine or, for that matter, any case in which any other court exercised jurisdiction over a party on that basis. See,
e.g.
,
Helicopteros Nacionales de Colombia, S.A. v. Hall
,
¶ 26 For all the foregoing reasons, we find that the plaintiff has not met his burden of establishing that GE is subject to personal jurisdiction in Illinois either under a general or specific jurisdiction theory. The order of the circuit court denying the defendants' motion to dismiss for lack of personal jurisdiction is, therefore, reversed and the matter is remanded with directions to enter an order dismissing GE as a party defendant.
¶ 27 Reversed and remanded with directions.
Justices Connors and Delort concurred in the judgment and opinion.
Following the initiation of this lawsuit, Campbell died and Anissa Campbell Ivey was appointed special administrator of his estate. GE is the only defendant that is a party to this appeal.
In his discovery deposition, the plaintiff testified that his employment at Republic Steel in fact occurred in 1961 and 1962.
Although GE's motion to dismiss did not identify the section of the Code under which it was brought, we construe it as having been brought under section 2-301 of the Code (735 ILCS 5/2-301 (West 2016) ), which governs objections to the court's personal jurisdiction.
Reference
- Full Case Name
- Arlin CAMPBELL, Deceased, by and Through His Special Administrator, Anissa Campbell Ivey, Plaintiff-Appellee, v. ACME INSULATIONS, INC.; Action Insulating Services, Inc. ; Ajax Electric Company; Ajax Magnethermic Corporation; Allegheny International, Inc., F/K/A Allegheny Steel Company; Allegheny Steel Company; Allied Insulation Supply Co., Inc.; Alloyed Insulation Company, Inc.; Arvinmeritor, Inc.; Arctic Insulation, Inc.; A.W. Chesterton Company; Brand Insulations, Inc. ; Borg-Warner Corporation, by Its Successor-In-Interest BorgWarner Morse Tec, Inc.; Carboline Company; Cardinal Industrial Insulation Co., Inc.; Carlisle Insulation, Inc.; Caterpillar, Inc.; CBS Corporation, F/K/A Viacom, Inc., Merger to CBS Corporation, F/K/A Westinghouse Electric Corp.; Certain-Teed Corporation; Colfax Corporation, a Virginia Corporation, A/K/A Warner Electric, A/K/A Boston Gear, A/K/A Delroyd Worm Gear Formsprag Clutch, A/K/A Stieber Clutch, A/K/A Ameridrives Couplings, A/K/A Wichita Clutch, A/K/A Nuttall Gear, A/K/A Industrial Clutch, A/K/A Marland Clutch; Continental Teves, Inc.; Crown, Cork and Seal Company, Inc.; CSR, Ltd, A/K/A Consolidated Sugar and Refining; The Dow Chemical Company; Ferro Corporation; Ferro Industries; Foseco, Inc.; General Electric Company; General Gasket Corporation; Georgia-Pacific, LLC; Grinnell, LLC; Hennessy Industries, Inc.; Honeywell International, Inc.; Iowa Illinois Taylor Insulation Contracting, Inc.; John Crane, Inc.; The J.R. Clarkson Company, Successor to the Kunkle Valve Company, and Successor to J.E. Lonergan Company; L & S Insulation Co., Inc.; Latrobe Specialty Steel Company; Lear-Siegler Diversified Holdings Corp. ; Lennox Industries, Inc., F/K/A Lennox Furnace Company; Luse-Stevenson Co.; M & O Insulation Company; Maremont Corporation; Metropolitan Life Insurance Company; Midland Engineering Company, Inc.; Mine Safety Appliances Company; Morton International, Inc., as Successor-In-Interest to Morton Thiokol, Inc., as Successor-In-Interest to Thiokol Corporation; National Service Industries, Inc. (Delaware), F/K/A North Brothers, National Service Industries, F/K/A North Brothers; Nelson Insulation Company; On Marine Services Company, a Delaware Corporation, and a Wholly Owned Subsidiary of Oglebay Norton Company, an Ohio Corporation; Owens-Illinois, Inc.; Paul J. Krez Company; Sprinkmann Sons Corporation; Pnuemo Abex Corporation; Republic Steel; Riley Power, Inc., F/K/A Riley Stoker Corporation, and Taylor Insulation Company ; Teledyne Mid-American Corporation, A/K/A Teledyne-Vasco, F/K/A Vasco Steel; Triangle Enterprises, Inc., A/K/A Triangle Insulation Company; Union Carbide Corporation; Union Electric Steel Corporation; Universal Stainless & Alloy Products, Inc., F/K/A Cytemp Steel ; Washington Steel Corporation; Wilkin Insulation Co. ; WTI Rust Holdings, Inc. ; And Young Insulation Group of St. Louis, Inc., Defendants, (General Electric Company, Defendant-Appellant).
- Cited By
- 6 cases
- Status
- Unpublished