Owens-Illinois v. Rapid-American

Filed: September 15, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-1592
(CA-94-56-5, BK-94-01)
Owens-Illinois, Incorporated,
Plaintiff - Appellant,
versus
Rapid American Corporation, et al,
Defendants - Appellees.
O R D E R
The Court amends its opinion filed September 4, 1997, as
follows:
On page 2, section 1, line 6 -- "Kenneth R. Friedman, RUBIN,
BAUM, LEVIN, CONSTANT & FRIEDMAN, New York, New York, for Appel-
lee." is added to the attorney information.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: THE CELOTEX CORPORATION,
Debtor.
OWENS-ILLINOIS, INCORPORATED,
Plaintiff-Appellant,
No. 96-1592
v.
RAPID AMERICAN CORPORATION,
Successor in interest to Philip-Carey
Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-94-56-5, BK-94-01)
Argued: April 9, 1997
Decided: September 4, 1997
Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Judge Hamilton wrote the opinion, in
with Judge Motz and Senior Judge Phillips joined.
_________________________________________________________________
COUNSEL
ARGUED: Robert Ogilvie Meriwether, NELSON, MULLINS,
RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for
Appellant. Paul H. Aloe, RUBIN, BAUM, LEVIN, CONSTANT &
FRIEDMAN, New York, New York, for Appellee. ON BRIEF: R.
Bruce Shaw, George B. Cauthen, NELSON, MULLINS, RILEY &
SCARBOROUGH, L.L.P., Columbia, South Carolina; David B. Hen-
drickson, HENDRICKSON & LONG, Charleston, West Virginia, for
Appellant. Kenneth D. Friedman, RUBIN, BAUM, LEVIN,
CONSTANT & FRIEDMAN, New York, New York, for Appellee.
_________________________________________________________________
OPINION
HAMILTON, Circuit Judge:
This action for contribution stems from eight civil proceedings in
which the appellant, Owens-Illinois, Inc. (Owens), and the Celotex
Corporation (Celotex), a successor in interest to the Philip-Carey
Manufacturing Corporation (Old Carey) and a new version of the
same company (New Carey), were found jointly and severally liable
for personal injuries caused by exposure to asbestos-containing prod-
ucts manufactured by Owens, Old Carey and New Carey. Owens sat-
isfied both its allocated share of the judgments and Celotex's
allocated share of the judgments. Celotex's allocated share of the
judgments totaled $1,794,298.84.
Prior to the entry of some of the judgments, Celotex filed a volun-
tary petition for relief under Chapter 11 of the United States Bank-
ruptcy Code in the United States Bankruptcy Court for the Middle
District of Florida. Owens then sought contribution from another cor-
porate successor of Old Carey, appellee Rapid American Corporation
(Rapid).1 Accordingly, on October 3, 1994, Owens filed a complaint
_________________________________________________________________
1 In Tretter v. Rapid Am. Corp., 514 F. Supp. 1344, 1346 (E.D. Mo.
1981), an unrelated action, the court gave the following summary of the
dizzying corporate lineage of Rapid and Celotex:
In 1888, the Philip Carey Manufacturing Corporation (Old
Carey) was formed in Ohio. Effective June 1, 1967, Old Carey
was merged with Glen Alden. On that same date, Glen Alden
assigned all the assets and liabilities it acquired from Old Carey
to a newly formed subsidiary, Philip Carey Manufacturing Cor-
poration (New Carey). In this transaction, New Carey agreed to
2
in the Circuit Court of Monongalia County, West Virginia, against
Rapid, as the corporate successor to Old Carey, for contribution in the
amount of $1,794,298.84, plus prejudgment interest (the Contribution
Action). See W. Va. Code § 55-7-13 (1994). Owens asserted that per-
sonal jurisdiction existed over Rapid via Old Carey, who had put its
products into the stream of commerce with the expectation that they
would reach West Virginia.2
Pursuant to 28 U.S.C. § 1452(a), Rapid removed the Contribution
Action to the United States District Court for the Northern District of
West Virginia on the basis that it was "related to" the Celotex bank-
ruptcy case in Florida, 28 U.S.C. § 1334(b).3 Title 28, United States
Code § 1334(b) provides that "[n]otwithstanding any Act of Congress
that confers exclusive jurisdiction on a court or courts other than the
district courts, the district courts shall have original but not exclusive
jurisdiction of all civil proceedings arising under title 11, or arising
in or related to cases under title 11." 28 U.S.C. § 1334(b) (emphasis
_________________________________________________________________
assume all the liabilities of Old Carey and agreed to indemnify
Glen Alden against any such liabilities including the cost of
defense or settlement of any such liabilities. After this transac-
tion Glen Alden continued in operation. Glen Alden itself has
never manufactured or sold asbestos, and plaintiff does not con-
tend otherwise.
In 1968, Philip Carey Manufacturing Corporation changed its
name to Philip Carey Corporation. In 1970, Philip Carey Corpo-
ration merged into Briggs Manufacturing Company and the sur-
viving corporation adopted the name Panacon Corporation. In
1972, Celotex Corporation purchased the Panacon Corporation,
and assumed all its liabilities.
Glen Alden subsequently merged into Rapid American's corporate struc-
ture. See id at 1345 n.1.
2 Before its merger into Glen Alden, Old Carey was an Ohio corpora-
tion with its principal place of business in Cincinnati, Ohio.
3 Neither of the two traditional bases for subject matter jurisdiction in
federal court existed. Federal question jurisdiction did not exist because
Owens' claim for contribution was based on the law of West Virginia.
See 28 U.S.C. § 1331. Diversity jurisdiction did not exist because both
Owens and Rapid are Delaware corporations. See 28 U.S.C. § 1332.
3
added). According to Rapid's Notice of Removal, the action was
related to the Celotex bankruptcy case because "[s]hould [Owens]
prevail in its contribution action, [Celotex] would immediately
become liable to Rapid as its contractual and common law indemni-
tor." (J.A. 15).
Rapid had in fact previously filed a proof of claim against the
Celotex bankruptcy estate for a contingent and unliquidated amount
based on theories of contribution and indemnification. According to
Rapid's proof of claim:
Celotex's liability to Rapid is based upon Rapid's right to
contribution and indemnification (including costs of defense
and attorney's fees) arising from or in connection with per-
sons' and other entities' pending claims and lawsuits against
Rapid, or which may arise or be incurred in connection with
presently unasserted claims against Rapid, based upon any
theory of law, equity or admiralty for, relating to, or arising
by reasons of, directly or indirectly, death, personal injuries
or personal damages . . . to the extent caused or allegedly
caused, directly or indirectly, by asbestos or asbestos-
containing products or any other activity or omission or
products, goods, minerals or other material or exposure
thereto . . . .
(J.A. 44-45). Rapid's claim against the Celotex bankruptcy estate was
principally based upon a written agreement entitled "General Assign-
ment & Assumption of Liabilities," (J.A. 52), wherein Celotex's pre-
decessor in interest, New Carey, agreed to indemnify Rapid's
predecessor in interest, Glen Alden, for all liabilities and defense
costs arising out of Old Carey's merger into Glen Alden and Glen
Alden's subsequent transfer of all Old Carey's assets to New Carey
(the Indemnity Agreement).
Owens also filed a proof of claim against the Celotex bankruptcy
estate. A copy of Owens' proof of claim is not in the record, but
Owens represents and Rapid does not contest that Owens' claim
sought contribution for liabilities it has borne on behalf of Celotex
with respect to asbestos-related injury claims.
4
Turning back to Rapid's Notice of Removal, we note that Rapid
took the position that the Contribution Action was a non-core pro-
ceeding, and thus, should remain in the district court rather than being
referred to the bankruptcy court. In conjunction with its Notice of
Removal, Rapid moved to withdraw the automatic reference to the
bankruptcy court, see 28 U.S.C. § 157(d), and to dismiss the Contri-
bution Action for lack of personal jurisdiction, see Fed. R. Civ. P.
12(b)(2).
Owens objected to Rapid's removal and sought remand on two
bases. Owens contended that the district court lacked subject matter
jurisdiction, because the Contribution Action was not related to the
Celotex bankruptcy case. See 28 U.S.C. § 1334(b). Owens also con-
tended that equitable grounds such as comity and the state court's
expertise in questions of state law warranted remand. See 28 U.S.C.
1452(b).
The district court ordered the bankruptcy court for the Northern
District of West Virginia to prepare a report and make recommenda-
tions on Owens' motion to remand and Rapid's motion to withdraw
the automatic reference. The bankruptcy court did so, recommending
that the district court grant Owens' motion to remand the Contribution
Action to state court. In the event the district court determined not to
remand, the bankruptcy court recommended that the automatic refer-
ence be withdrawn. Without conducting a hearing, the district court
denied Owens' motion to remand and granted Rapid's motion to with-
draw the automatic reference. Finally, the district court granted
Rapid's motion to dismiss the Contribution Action for lack of per-
sonal jurisdiction. According to the district court, Rapid lacked suffi-
cient minimum contacts with West Virginia to comply with due
process requirements. After the district court denied a motion for
reconsideration by Owens, Owens noted a timely appeal.
On appeal, Owens does not challenge the withdrawal of the auto-
matic reference, but does challenge the district court's denial of its
motion to remand and the district court's dismissal for lack of per-
sonal jurisdiction. After initial briefing by the parties in this court, but
before oral argument, the bankruptcy court confirmed a plan of reor-
ganization for Celotex (the Confirmed Plan). See In re Celotex, 204
B.R. 586 (Bankr. M.D. Fla. 1996). We requested supplemental brief-
5
ing from the parties regarding what effect, if any, the Confirmed Plan
had on the issues on appeal. From this supplemental briefing, we
learned that Rapid objected to the treatment of its claim under the
Confirmed Plan, and thus, appealed to the district court. Prior to the
district court's consideration of the matter, however, Rapid and the
Celotex bankruptcy estate reached what Rapid characterizes as a
"global settlement of their various differences and disputes, obviating
appeal." (Rapid's Supplemental Br. at 3). The bankruptcy court
approved this settlement on February 11, 1997.
The Confirmed Plan neither allowed nor disallowed Owens' claim
for contribution against the Celotex bankruptcy estate. Rather, it
deemed the claim as one against a trust, created by the Confirmed
Plan to address, liquidate, resolve, disallow, or allow and pay all the
asbestos related claims against the Celotex bankruptcy estate (the
Asbestos Claims Trust). See In re Celotex, 204 B.R. at 602. Under the
Confirmed Plan, the Asbestos Claims Trust is deemed the successor
for all purposes to the liabilities of Celotex with respect to allowed
amounts of asbestos related claims. See id. at 619-620. Owens' claim
would then be resolved in accordance with the "Asbestos Claims Res-
olution Procedures" established by the Confirmed Plan. Id. at 602. We
have no knowledge as to the present status of Owens' claim in this
process.
For the following reasons, we affirm the district court's denial of
Owens' motion to remand and the district court's order dismissing the
Contribution Action for lack of personal jurisdiction.
I.
Owens first challenges the district court's denial of its motion to
remand the Contribution Action to state court. Before addressing this
challenge, however, we must first address the threshold issue raised
by Rapid of whether we have the power to review the district court's
denial of Owens' motion to remand.
A.
Rapid argues that 28 U.S.C. § 1452(b) expressly precludes our
review of the district court's denial of Owens' motion to remand.
6
Rapid is correct with respect to the district court's decision that equi-
table grounds did not favor remand, but it is incorrect with respect to
the district court's refusal to remand for lack of subject matter juris-
diction.
Section 1452 provides, in pertinent part, as follows:
(a) A party may remove any claim or cause of action in
any civil action . . . to the district court for the district where
such civil action is pending, if such district court has juris-
diction of such claim or cause of action under section 1334
of this title.
(b) The court to which such claim or cause of action is
removed may remand such claim or cause of action on any
equitable ground. An order entered under this subsection
remanding a claim or cause of action, or a decision to not
remand, is not reviewable by appeal or otherwise by the
court of appeals under section 158(d), 1291, or 1292 of this
title or by the Supreme Court of the United States under sec-
tion 1254 of this title.
28 U.S.C. § 1452(b) (emphasis added). The language of § 1452(b)
expressly precludes appellate review of a district court's refusal to
remand a properly removed action on equitable grounds. However,
the plain language of § 1452(b) presumes that removal under
§ 1452(a) was proper. A proper removal could not occur without the
district court possessing subject matter jurisdiction under § 1334. See
Pacor, Inc. v. Higgins, 743 F.2d 984, 993 (3d Cir. 1984) (reaching
same conclusion in the context of § 1452(b)'s materially similar pre-
decessor, 28 U.S.C. § 1478(b)). If, in fact, a district court does not
possess subject matter jurisdiction under § 1334(b), then § 1452(b)
"never comes into play, and the absolute prohibition on appellate
review over equitable remands which were granted or denied under
this subsection . . . never becomes operative." Id. To hold otherwise
would suggest the incredulous result that § 1452(b)'s restrictions on
appellate review may alter the basic proposition that a challenge to
the district court's subject matter jurisdiction may be raised at any
time by the parties or the court. See Things Remembered, Inc. v.
Petrarca, 116 S. Ct. 494, 499 n.1 (1995) (Ginsburg, J., concurring).
7
In sum, we hold that § 1452(b) precludes us from reviewing the dis-
trict court's decision that equitable grounds did not favor remand, but
does not preclude us from reviewing the district court's decision
denying Owens' motion to remand to the extent that Owens' motion
rested on the district court allegedly lacking subject matter jurisdic-
tion.
B.
We now consider de novo whether the district court possessed sub-
ject matter jurisdiction pursuant to § 1334(b). See In re A.H. Robins
Co. Inc., 86 F.3d 364, 371 (4th Cir.), cert. denied, 117 S. Ct. 483(1996). As set forth above, § 1452(a) provides for removal of a state
action "to the district court for the district where such civil action is
pending, if such district court has jurisdiction of such claim or cause
of action under section 1334 of this title." 28 U.S.C. § 1452(a). Sec-
tion 1334(b), in turn, provides in pertinent part that "the district court
shall have original but not exclusive jurisdiction of all civil proceed-
ings arising under title 11, or arising in or related to cases under title
11." 28 U.S.C. § 1334(b) (emphasis added). In Celotex Corp. v.
Edwards, 115 S. Ct. 1493, 1499 (1995), the Supreme Court expressed
agreement with the view of the Third Circuit in Pacor, Inc. v.
Higgins, 743 F.2d 984, 994 (3d Cir. 1984), that by Congress' choice
of words in § 1334(b) "`Congress intended to grant comprehensive
jurisdiction to the bankruptcy courts so that they might deal effi-
ciently and expeditiously with all matters connected with the bank-
ruptcy estate . . . .'"
In A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002 n.11 (4th Cir.
1986), we adopted the Third Circuit's test for determining the exis-
tence of "related to" jurisdiction. That test, in its entirety, provides:
The usual articulation of the test for determining whether
a civil proceeding is related to bankruptcy is whether the
outcome of that proceeding could conceivably have any
effect on the estate being administered in bankruptcy. Thus,
the proceeding need not necessarily be against the debtor or
against the debtor's property. An action is related to bank-
ruptcy if the outcome could alter the debtor's rights, liabili-
ties, options or freedom of action (either positively or
8
negatively) and which in any way impacts upon the han-
dling and administration of the bankruptcy estate.
Pacor, 743 F.2d at 994 (citations omitted); see also Celotex, 115 S.
Ct. at 1499 n.6 (recognizing that the First, Fourth, Fifth, Sixth, Eighth,
Ninth, Tenth and Eleventh Circuits have adopted the Pacor test with
little or no variation and the Second and Seventh Circuits have
adopted a slightly different test and not choosing one test over the
other). Notably, the Pacor test does not require certain or likely alter-
ation of the debtor's rights, liabilities, options or freedom of action,
nor does it require certain or likely impact upon the handling and
administration of the bankruptcy estate. The possibility of such alter-
ation or impact is sufficient to confer jurisdiction. See Pacor, 743
F.2d at 994; see also In re Titan Energy, Inc., 837 F.2d 325, 330 (8th
Cir. 1988) ("[E]ven a proceeding which portends a mere contingent
or tangential effect on a debtor's estate meets the broad jurisdictional
test articulated in Pacor.").
Before we apply the Pacor test, we note that if "related to" jurisdic-
tion actually existed at the time of Rapid's removal of the Contribu-
tion Action to the district court, Rapid's global settlement with the
Celotex bankruptcy estate and the treatment of Owens' claim under
the Confirmed Plan could not divest the district court of that subject
matter jurisdiction. See Freeport-McMoRan, Inc. v. K N Energy, Inc.,
498 U.S. 426, 428 (1991) (if a federal court possesses subject matter
jurisdiction over an action at the time it is commenced, a subsequent
event cannot divest the court of that subject matter jurisdiction). Thus,
our analysis may not be informed by our knowledge of the Confirmed
Plan or Rapid's settlement with the Celotex bankruptcy estate.
Turning to application of the Pacor test here, we conclude that
whether Rapid is held liable in the Contribution Action is a question
"related to" the Celotex bankruptcy case. First, any recovery by
Owens in the Contribution Action would reduce Owens' claim
against the Celotex bankruptcy estate for contribution by the same
amount, thus altering the liabilities of the Celotex bankruptcy estate.
See In re Kaonohi Ohana, Ltd., 873 F.2d 1302, 1306-07 (9th Cir.
1989) (upholding "related to" jurisdiction over third-party action
because specific performance remedy in third-party action would
reduce damages in breach of contract claim against bankruptcy
9
estate); In re Titan Energy, Inc., 837 F.2d at 329-30 (nondebtor
claims against third-party insurance company "related to" the bank-
ruptcy under Pacor because recovery would reduce liabilities of the
estate). Furthermore, any recovery by Owens against Rapid would
impact the handling and administration of the Celotex bankruptcy
estate by changing the character of Rapid's indemnification claim
against Celotex from contingent and unliquidated to certain and liqui-
dated. This change would obviate the need to estimate the amount of
Rapid's claim under Bankruptcy Code § 502(c), which requires that
a contingent or unliquidated claim be estimated if the bankruptcy
court determines that the fixing or liquidation of a claim would
unduly delay the administration of the bankruptcy case. In sum, the
outcome of the Contribution Action could conceivably have an effect
on the Celotex bankruptcy case. See In re American Hardwoods, Inc.,
885 F.2d 621, 623-24 (9th Cir. 1989) (finding "related to" jurisdiction
where enforcement of state court judgment by creditor against debt-
or's guarantors would affect administration of debtor's reorganization
plan); In re Brentano's, 27 B.R. 90, 91-92 (Bankr. S.D.N.Y. 1983)
("related to" jurisdiction existed based on a bankruptcy debtor's con-
tractual obligation to indemnify its guarantor who was a defendant in
an action for past due rent). Under the Pacor test, this potential effect
is all that is required.
Owens argues that no potential for impact exists because prevailing
in the Contribution Action would reduce its claim against the Celotex
bankruptcy estate by the same amount that it would increase Rapid's
claim against it. This argument is flawed. The offset would not be the
same. Under the Indemnity Agreement, Rapid is entitled to indemnifi-
cation from Celotex for costs that it incurs in defending itself in the
Contribution Action, whereas Owens, under the American rule, is not.
The American rule provides that each party bear the cost of its own
attorney's fees unless a statute or agreement provides otherwise. See
Key Tronic Corp. v. United States, 511 U.S. 809, 814-15 (1994).
According to Owens, this case is analogous to Pacor, in which the
Third Circuit held that a third-party action was not "related to" the
bankruptcy case because the defendant only had a common law right
to indemnification from the debtor. The court reasoned that a judg-
ment against the defendant in the third-party action could not deter-
mine any rights, liabilities, or course of action of the debtor, because
10
neither res judicata nor collateral estoppel could be asserted against
the debtor. Significantly, the court specifically distinguished its hold-
ing from In re Brentano's, 27 B.R. at 90. In that case, a bankruptcy
court found "related to" jurisdiction on the ground that the obligation
of reimbursement between the debtor and the defendant in the third-
party action was set by contract, which meant that a successful claim
against the defendant would automatically result in indemnification
liability against the debtor. Pacor, 743 F.2d at 995-96.
We do not believe that Pacor suggests that "related to" jurisdiction
does not exist over the Contribution Action. Given that Rapid's proof
of claim against the Celotex bankruptcy estate rests on a contractual
obligation of indemnity, we believe that the situation before us is
more analogous to the situation in In re Brentano's than the situation
in Pacor. Furthermore, Owens' claim against the Celotex bankruptcy
estate serves as an additional link between the Contribution Action
and the Celotex bankruptcy case, a link that was not present in Pacor.
In conclusion, we hold the Contribution Action is"related to" the
Celotex bankruptcy case. Therefore, the district court properly exer-
cised subject matter jurisdiction over it.4
II.
We next review the district court's decision to dismiss the Contri-
bution Action for lack of personal jurisdiction over Rapid. In this
task, we review legal conclusions de novo and any underlying factual
_________________________________________________________________
4 Owens alternatively argues that the mandatory abstention provision of
28 U.S.C. § 1334(c)(2) prohibited the district court from exercising sub-
ject matter jurisdiction over this case. That provision mandates that
"upon timely motion" the district court abstain from hearing a case in
federal court on "related to" jurisdiction if the action is commenced and
can be timely adjudicated in state court. We do not address this argu-
ment, because Owens waived any right to invoke the mandatory absten-
tion provision of § 1334(c)(2) by failing to make an appropriate motion.
See In re Mauldin, 52 B.R. 838, 842 (N.D. Miss. 1985) (refusing to con-
sider whether mandatory abstention provisions of 28 U.S.C. § 1334(c)(2)
applied because there was no motion of record for mandatory absten-
tion).
11
findings for clear error. See Mylon Lab., Inc. v. Akzo, N.V., 2 F.3d 56,
60 (4th Cir. 1993). Below, the district court concluded that it could
not exercise personal jurisdiction over Rapid without violating
Rapid's right to due process under the Due Process Clause of the
Fourteenth Amendment. Specifically, the district court concluded that
Rapid did not have sufficient minimum contacts with West Virginia
such that it could be legally subject to personal jurisdiction in that
forum.
Owens' attack on the district court's decision to dismiss for lack of
personal jurisdiction is two-fold. First, Owens argues that Rapid had
sufficient contacts with West Virginia under the successor corporation
theory to subject it to personal jurisdiction in West Virginia. Second,
Owens argues that the district court committed plain error by failing
to recognize that personal jurisdiction existed over Rapid pursuant to
Bankruptcy Rule 7004. We address each argument in turn.
A.
In order for a court to validly exercise personal jurisdiction over a
non-resident defendant: (1) a statute must authorize service of process
on the non-resident defendant, and (2) the service of process must
comport with the Due Process Clause. See Mylan Lab., Inc., 2 F.3d
at 60. Because the West Virginia long-arm statute is coextensive with
the full reach of due process, see Pittsburgh Terminal Corp. v. Mid
Allegheny Corp., 831 F.2d 522, 525 (4th Cir. 1987), it is unnecessary
in this case to go through the normal two-step formula for determin-
ing the existence of personal jurisdiction, see, e.g., Stover v.
O'Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir.) (Maryland
forum state), cert. denied, 117 S. Ct. 437 (1996); Rossman v. State
Farm Mut. Auto. Ins. Co., 832 F.2d 282, 286 n.1 (4th Cir. 1987) (Vir-
ginia forum state); Columbia Briargate Co. v. First Nat'l Bank of
Dallas, 713 F.2d 1052, 1057 (4th Cir. 1983) (South Carolina forum
state). Rather, the statutory inquiry necessarily merges with the Con-
stitutional inquiry. Accordingly, our inquiry centers on whether exer-
cising personal jurisdiction over Rapid is consistent with the Due
Process Clause. See Stover, 84 F.3d at 136.
A court's exercise of personal jurisdiction over a non-resident
defendant is consistent with the Due Process Clause if the defendant
12
has sufficient "minimum contacts" with the forum such that requiring
the defendant to defend its interests in the forum does not "offend
`traditional notions of fair play and substantial justice.'" International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Miliken
v. Meyer, 311 U.S. 457, 463 (1940)). Later cases have clarified that
the minimum contacts must be "purposeful." Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985). This "purposeful" requirement
rests on the basic premise that traditional notions of fair play and sub-
stantial justice are offended by requiring a non-resident to defend
itself in a forum when the non-resident never purposefully availed
itself of the privilege of conducting activities within the forum, thus
never invoking the benefits and protections of its laws. See Hanson
v. Denckla, 357 U.S. 235, 253 (1958); Stover, 84 F.3d at 136. More-
over, this "purposeful" requirement "helps ensure that non-residents
have fair warning that a particular activity may subject them to litiga-
tion within the forum." Plant Genetic Systems, N.V. v. Ciba Seeds,
933 F. Supp. 519, 523 (M.D.N.C. 1996) (citing Burger King, 471
U.S. at 472, and World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980)).
When, as here, a court's power to exercise personal jurisdiction
over a non-resident defendant is challenged by a motion under Fed-
eral Rule of Civil Procedure 12(b)(2), "the jurisdictional question thus
raised is one for the judge, with the burden on the plaintiff ultimately
to prove the existence of a ground for jurisdiction by a preponderance
of the evidence." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
Furthermore, when, as here, a district court rules on a Rule 12(b)(2)
motion without conducting an evidentiary hearing or without defer-
ring ruling pending receipt at trial of evidence relevant to the jurisdic-
tional issue, but rather relies on the complaint and affidavits alone,
"the burden on the plaintiff is simply to make a prima facie showing
of a sufficient jurisdictional basis in order to survive the jurisdictional
challenge." Combs, 886 F.2d at 676. "In considering a challenge on
such a record, the court must construe all relevant pleading allega-
tions in the light most favorable to the plaintiff, assume credibility,
and draw the most favorable inferences for the existence of jurisdic-
tion." Id.Owens' complaint asserted that personal jurisdiction over Rapid
existed under the successor corporation liability theory. Under that
13
theory, a non-resident defendant corporation not otherwise subject to
personal jurisdiction in the forum state becomes so by virtue of its
succeeding to a corporation that was subject to personal jurisdiction
in the forum state. See City of Richmond v. Madison Management
Group, Inc., 918 F.2d 438, 455 (4th Cir. 1990) (affirming exercise of
personal jurisdiction based on successor liability theory).
According to Owens' complaint, Rapid is the successor corporation
of Old Carey. Assuming the validity of this assertion for the sake of
argument, Owens still cannot meet its burden of establishing a prima
facie showing of personal jurisdiction over Rapid, because the record
does not establish that the exercise of personal jurisdiction over Old
Carey in West Virginia would comport with the Due Process Clause.
Owens does not even allege that Old Carey, an Ohio corporation with
its principal place of business in Cincinnati, Ohio, ever purposely
directed activities in West Virginia. Rather, Owens' complaint only
asserts that Old Carey would be subject to personal jurisdiction in
West Virginia by virtue of its asbestos containing products "reach-
[ing]" West Virginia "in the normal stream of commerce." (J.A. 7).
Owens' assertion is known in personal jurisdiction jurisprudence as
the "stream of commerce theory."
Our decision in Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939(4th Cir. 1994), is dispositive on this issue. In Lesnick, a plaintiff,
whose husband had died of mesothelioma, sued a non-resident defen-
dant corporation. The non-resident corporation manufactured the
"Micronite Filter" used on a particular brand of cigarettes that the
plaintiff's husband smoked. The plaintiff alleged that asbestos incor-
porated into the filter caused her husband's death. The non-resident
defendant corporation had manufactured approximately ten billion
such filters with the knowledge that the filters would be incorporated
into cigarettes sold throughout the nation. The plaintiff urged that the
non-resident corporation was subject to personal jurisdiction in the
forum for two reasons: (1) the nonresident defendant corporation
placed its filters in the stream of commerce with the expectation that
they would be purchased by consumers in the forum state; and (2) the
non-resident defendant corporation and the manufacturer of the ciga-
rettes were so closely affiliated that the manufacturer's distribution of
its cigarettes into the forum should be attributed to the non-resident
defendant corporation. We rejected both theories, making clear that
14
a non-resident defendant may only be subject to personal jurisdiction
under the "stream of commerce theory" if that defendant engaged in
some activity purposely directed at the forum state. See id. at 945-46.
In this regard, we explained:
The touchstone of the minimum contacts analysis remains
that an out-of-state person have engaged in some activity
purposefully directed toward the forum state . . . . To permit
a state to assert jurisdiction over any person in the country
whose product is sold in the state simply because a person
must expect that to happen destroys the notion of individual
sovereignties inherent in our system of federalism. Such a
rule would subject defendants to judgment in locations
based on the activity of third persons and not the deliberate
conduct of the defendant, making it impossible for defen-
dants to plan and structure their business contacts and risks.
Id. at 945 (emphasis added).
Here, Owens has not alleged more than the entry of Old Carey
products into the stream of commerce with the expectation that they
would be purchased in West Virginia. Critically, Owens' complaint
is wholly devoid of any allegations that Old Carey engaged in any
activity purposefully directed at West Virginia. Thus, under Lesnick,
the district court was correct in concluding that Owens' attempt to
establish personal jurisdiction via Old Carey fails.5
_________________________________________________________________
5 Apparently sensing the weakness of its argument based on the stream
of commerce theory, Owens urges us to excuse its failure to even allege
that Old Carey engaged in conduct purposely directed at West Virginia
on the basis that it was denied the opportunity to develop evidence to that
effect. Owens apparently misunderstands its burden in filing a civil
action. Both West Virginia Rule of Civil Procedure 8(a) and Federal
Rule of Civil Procedure 8(a) require a plaintiff filing a complaint to
include a short and plain statement of the grounds upon which the court's
jurisdiction depends. Not surprisingly, Owens offers no authority for the
position that it should be relieved of this minimal burden.
15
B.
We now address Owens' argument that the district court committed
plain error by failing to recognize that personal jurisdiction over
Rapid existed pursuant to Bankruptcy Rule 7004. In doing so, we will
first consider whether Bankruptcy Rule 7004 even provides a basis
for personal jurisdiction over Rapid.
We have determined that this case is properly in federal district
court on "related to" jurisdiction under § 1334(b). The entire body of
Bankruptcy Rules, therefore, applies to this action. See Anderson v.
F.D.I.C., 918 F.2d 1139, 1143 n.3 (4th Cir. 1990) (citing Bankruptcy
Rule 1001 and holding that Bankruptcy Rules apply to an action in
federal district court based on "related to" jurisdiction under 28
U.S.C. § 1334(b)); see also Phar-Mor, Inc. v. Coopers & Lybrand, 22
F.3d 1228, 1236-37 (3d Cir. 1994) (same); Diamond Mortgage Corp.
of Illinois v. Sugar, 913 F.2d 1233, 1240-41 (7th Cir. 1990) (same).
Of relevance here, Bankruptcy Rule 7004(d) allows the service of
process otherwise permitted under Bankruptcy Rule 7004 to be
effected "anywhere in the United States." Of further relevance, Bank-
ruptcy Rule 7004(f) provides that if the exercise of jurisdiction is con-
sistent with the United States Constitution and the laws of the United
States, then service in accordance with Bankruptcy Rule 7004 is "ef-
fective to establish personal jurisdiction over the person of any defen-
dant with respect to a case . . . related to a case under the
[Bankruptcy] Code." (emphasis added). Our review reveals that the
requirements of Bankruptcy Rule 7004(f) are met in this case.
On the topic of whether the exercise of personal jurisdiction over
Rapid is consistent with the Constitution and the laws of the United
States, the question of whether Rapid had minimum contacts with
West Virginia is irrelevant. This is so because when an action is in
federal court on "related to" jurisdiction, the sovereign exercising
authority is the United States, not the individual state where the fed-
eral court is sitting. See Diamond, 913 F.2d at 1244 (holding that con-
tacts between defendants and the State of Illinois had no bearing upon
whether the district court could exercise personal jurisdiction over
defendants in a case in federal district court on "related to" jurisdic-
tion under 28 U.S.C. § 1334(b)); see also In re Am. Freight Sys., Inc.,
153 B.R. 316, 321 (D. Kan. 1993); In re B.R. Moran Fin. Corp., 124
16
B.R. 931, 943 (S.D.N.Y. 1991). Rather, we need only ask whether
Rapid has minimum contacts with the United States such that subject-
ing it to personal jurisdiction does not offend the Due Process Clause
of the Fifth Amendment to the United States Constitution. See
Diamond, 913 F.2d at 1244. Given that Rapid is a Delaware corpora-
tion with its principal place of business in New York, we have no
doubt that this is the case.
Turning to the service of process requirement of Bankruptcy Rule
7004(f), Rapid does not dispute that it received service of process in
accordance with West Virginia Rule of Civil Procedure 4, which rule
provides for service of process on a domestic (i.e., United States) cor-
poration in the same manner as Bankruptcy Rule 7004. Compare W.
Va. R. Civ. P. 4(d)(5) with Bankruptcy Rule 7004(b)(3). Thus, Rapid
received service of process in accordance with one of the methods
provided by Bankruptcy Rule 7004.
As Owens recognizes, even though we have concluded that Bank-
ruptcy Rule 7004 provides a clear basis for personal jurisdiction over
Rapid, reversal of the district court's dismissal is not automatic.
Owens failed to argue the applicability of Bankruptcy Rule 7004
below, thereby forfeiting any resulting error in the district court's dis-
missal for lack of personal jurisdiction.
While Federal Rule of Criminal Procedure 52(b)6 affords federal
appellate courts the discretion to correct certain forfeited errors in the
criminal context, in the civil context such discretion is judicially cre-
ated. See New York Central R.R. v. Johnson, 279 U.S. 310, 318-19
(1929); Fashauer v. New Jersey Transit Rail Operations, Inc., 57
F.3d 1269, 1289 (3d Cir. 1995); Mondave v. Long Island Jewish Med-
ical Center, 501 F.2d 1065, 1072 (2d Cir. 1974). While the Supreme
Court has never specifically articulated a test that a federal appellate
court must apply in determining whether it may exercise its discretion
to correct a forfeited error in the civil context, it has done so in the
criminal context. See United States v. Olano, 507 U.S. 725 (1993).
Under Olano, a federal appellate court may exercise its discretion to
_________________________________________________________________
6 Federal Rule of Criminal Procedure 52(b) provides: "Plain errors or
defects affecting substantial rights may be noticed although they were
not brought to the attention of the court."
17
correct an error not raised below under Federal Rule of Criminal Pro-
cedure 52(b), if: (1) there is an error; (2) the error is plain; (3) the
error affects substantial rights; and (4) the court determines, after
examining the particulars of each case, that the error seriously affects
the fairness, integrity or public reputation of judicial proceedings. See
Olano, 113 S. Ct. at 1776.
Since Olano, federal appellate courts have wrestled with its appli-
cability in the civil context. The Fifth Circuit has concluded that
Olano governs a federal appellate court's "plain error" review in the
civil context. See Highlands Ins. v. Nat'l Union Fire Ins., 27 F.3d
1027, 1031-32 (5th Cir. 1994) (applying Olano test in determining
whether to consider challenges to jury charges made for the first time
on appeal). The Third Circuit and the Sixth Circuit have taken guid-
ance from Olano in determining whether to exercise their discretion
to reverse upon finding plain error in the civil context on the ground
that the principles and decision in Olano apply a fortiori in the civil
context. See Fashauer, 57 F.3d at 1289; Smith v. Gulf Oil Co., 995
F.2d 638, 646 (6th Cir. 1993). At least one other circuit has applied
the Olano test in the civil context without expressly saying so. See,
Rush v. Smith, 56 F.3d 918, 922 (8th Cir. 1995). Because we cannot
conceive of a reason why an appellant in a civil case should bear a
lesser burden for obtaining correction of a forfeited error than an
appellant in a criminal case, we hold that, at a minimum, the require-
ments of Olano must be satisfied before we may exercise our discre-
tion to correct an error not raised below in a civil case. See Fashauer,
57 F.3d at 1289 ("If anything, the plain error power in the civil
context--which is judicially rather than statutorily created--should
be used even more sparingly."); United States v. Carson, 52 F.3d
1173, 1188 (2d Cir. 1995) (opining that the plain error doctrine
should only be invoked with extreme caution in the civil context). We
note that our holding is consistent with a pre-Olano Supreme Court
decision in a civil appeal, in which the Court recognized its "authority
and duty," and presumably that of all federal appellate courts, to "no-
tice federal-court errors to which no exception has been taken, when
they `seriously affect the fairness, integrity or public reputation of
judicial proceedings.'" Connor v. Finch, 431 U.S. 407, 421 (1977)
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). See
also Fowler v. Land Management Groupe, Inc., 978 F.2d 158, 164
(4th Cir. 1992) (refusing to address legal theory not advanced below
18
in a pre-Olano civil case, because the new theory did not result in
"`plain'" error or a "`miscarriage of justice.'") (quoting Nat'l Wildlife
Fed'n v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988)).
Application of the Olano test in this case shows that all of the
Olano elements are not satisfied. Even assuming for the sake of argu-
ment that the first three elements of Olano are satisfied, several fac-
tors strongly weigh against our concluding that the fairness, integrity
or public reputation of judicial proceedings will be seriously affected
if we do not correct the district court's error. See Olano, 113 S. Ct.
at 1776. Owens is a sophisticated party that is well versed in the rig-
ors of civil litigation. A search on Westlaw reveals that Owens has
either been a plaintiff or a defendant in at least seven hundred civil
cases. Thus, Owens cannot seek to excuse its failure to bring the
effect of Bankruptcy Rule 7004 to the attention of the district court
on the basis of its unfamiliarity with the litigation forum. Moreover,
Owens does not claim that it in any way lacked the opportunity to
raise the issue. Furthermore, Owens still has the opportunity under the
Confirmed Plan to recover some of its damages from the Asbestos
Claims Trust. In sum, we do not believe that the facts here call for
us to exercise our discretion to correct an error not raised by the
appellant below.
III.
In conclusion, we hold that: (1) we possess appellate jurisdiction
to review Owens' motion to remand to the extent that it challenges
the district court's subject matter jurisdiction; (2) the district court
possessed subject matter jurisdiction over the Contribution Action
pursuant to 28 U.S.C. § 1334(b); (3) the district court lacked personal
jurisdiction over Rapid under the successor corporation theory; and
(4) although the district court possessed personal jurisdiction over
Rapid pursuant to Bankruptcy Rule 7004, the facts here do not war-
rant that we exercise our discretion to correct the forfeited error.
Accordingly, we affirm the district court's denial of Owens' motion
for remand and the district court's dismissal of the Contribution
Action pursuant to Federal Rule of Civil Procedure 12(b)(2).
AFFIRMED
19