United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
matter is before the court on third-party defendant Henkel
Corporation's (defendant) motion to dismiss third-party
plaintiff PAC Operating Limited Partnership and Palmtree
Acquisition Corporation's (collectively, plaintiff)
complaint for lack of personal jurisdiction under Federal
Rule of Civil Procedure 12(b)(2). (Doc. 68.) For the reasons
set forth below, the court denies defendant's motion to
dismiss for lack of personal jurisdiction.
in the light most favorable to plaintiff, the complaint and
the record evidence are summarized as follows:
Steel Corporation (AK Steel) filed suit against plaintiff
under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (“CERCLA”) for
environmental response costs associated with the property
2707 Northeast Seward Avenue in Topeka, Kansas (the Site). AK
Steel alleges that plaintiff's predecessor owned the Site
and leased it to Turco Products, Inc. (Old Turco) from
January 1, 1955 to January 1, 1958, and that Old Turco's
operations contaminated the Site. Old Turco allegedly
manufactured emulsion cleaner used by the United States Air
Force to clean aircraft, and may have also repackaged paint
removers for use by the Air Force. AK Steel also alleges that
Old Turco's operations contaminated the Site.
Turco merged with Purex Corporation on December 31, 1960.
Purex Industries, Inc. acquired Purex Corporation and became
incorporated in Delaware in 1978. In 1985, Pennwalt
Corporation purchased Purex Industries. Pennwalt changed its
name to Atochem North America in 1989, then became Elf
Atochem in 1992, before finally changing its name to Atofina
Chemicals, Inc. (“Atofina”) in 2000. In 2001,
defendant entered into an Asset Purchase and Sale Agreement
with Atofina where defendant acquired Atofina's metals
and aviation business. Defendant also acquired certain assets
from an Atofina subsidiary called Turco Products, Inc. (New
Turco). New Turco was incorporated in Delaware in 1985.
Defendant acquired the trademark and name of New Turco, but
Atofina retained ownership of the subsidiary.
filed this third-party complaint against defendant pursuant
to Section 113(f) of CERCLA, seeking contribution for any
environmental response costs or damages adjudged against
them. (Doc. 26) Plaintiff alleges that defendant is liable
under Section 113(f) as a successor corporation to Old Turco.
Defendant brought a motion to strike plaintiff's
third-party complaint under Rule 14(a)(1) of the Federal
Rules of Civil Procedure on August 16, 2016. (Doc. 32.)
Magistrate Judge Birzer denied that motion on October 24,
2016. (Doc. 63.) Defendant then filed this motion to dismiss
for lack of personal jurisdiction under Rule 12(b)(2) of the
Federal Rules of Civil Procedure. (Doc. 68.)
is a Delaware corporation formed on January 22, 1970, with
its principal place of place of business in Connecticut.
Defendant does not have an office, phone number, bank
account, or mailing address in Kansas. Defendant does not own
any real property in Kansas, and it does not have any
employees in Kansas. Approximately 2% of defendant's
annual sales are from Kansas. Pursuant to Kansas law,
defendant is registered to conduct business in Kansas.
Plaintiff is a Delaware corporation headquartered in
Motions to Dismiss under Fed.R.Civ.P. 12(b)(2)
defendant may assert a pre-answer personal jurisdictional
defense by motion. Fed.R.Civ.P. 12(b)(2). Plaintiff bears the
burden of establishing personal jurisdiction over each
defendant. OMI Holdings, Inc. v. Royal Ins. Co. of
Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). When, as
here, the court exercises its discretion to decide
defendant's dismissal motion without conducting an
evidentiary hearing, plaintiff need only make a prima facie
showing of personal jurisdiction. Id. at
1091. To do so, plaintiff may establish facts via
affidavits or other written materials that, if true, would
support asserting personal jurisdiction. Id. The
court assumes the allegations in the complaint are true to
the extent they are not controverted, and resolves all
factual disputes in plaintiff's favor. Shrader v.
Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011).
Discussion - Personal Jurisdiction
argues the third-party complaint should be dismissed for lack
of personal jurisdiction. In analyzing personal jurisdiction,
the district court must determine: (1) whether the
defendant's conduct falls within the forum state's
long-arm statute, and (2) whether the exercise of personal
jurisdiction over the defendant satisfies the constitutional
guarantee of due process. Trujillo v. Williams, 465
F.3d 1210, 1217 (10th Cir. 2006). Because Kansas construes
its long-arm statute to the same limits allowed by federal
due process, the court proceeds directly to the
constitutional due process inquiry. OMI Holdings,
149 F.3d at 1090; Kan. Stat. Ann. §
60-308(b)(1)(L)-(b)(2). Analyzing due process is a two-step
process. First, the court must find that the defendant has
“minimum contacts” with the forum state such that
the defendant “should reasonably anticipate being haled
into court there.” World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 287 (1980). Second, the
defendant's contacts with the forum must be such
“that the maintenance of the suit does not offend
traditional notions of fair play and substantial
justice.” Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 113 (1987).