Paz v. Brush Eng Materials

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________ Clerk
No. 05-60157
______________________
GEORGE PAZ, ET AL.,
Plaintiffs-Appellants
versus
BRUSH ENGINEERED MATERIALS, INC. ET AL.,
Defendants-Appellees
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CONS/W 05-60388
GEORGE PAZ; ET AL.,
Plaintiffs
versus
BRUSH ENGINEERED MATERIALS, INC. ET AL.,
Defendants
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JOSEPH P HARRIS, ET AL.,
Plaintiffs-Appellants
versus
BRUSH ENGINEERED MATERIALS, INC. ET AL.,
Defendants
WESS-DEL, INC.
Defendant-Appellee
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___________________________________________________
Appeals from the United States District Court for
the Southern District of Mississippi
___________________________________________________
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Class action appellants have sued the appellees in this case,
claiming exposure to airborne beryllium at Boeing’s space center
facilities in Mississippi. For relief, the appellants seek to
establish a medical monitoring fund. Appellee Boeing employs most
of the proposed class members, who were allegedly exposed to the
beryllium during the manufacture of parts for a space shuttle.
Appellant Brush Wellman, Inc. (“Brush Wellman”) sold to Boeing many
of the beryllium-containing products that are the alleged source of
the toxic exposure. Appellant Brush Engineered Materials,
Inc.(“BEMI”) is the parent company of Brush Wellman. Appellant
Wess-Del, Inc. (“Wess-Del”) is a distributor of beryllium-
containing products that allegedly sold such goods to Boeing with
the knowledge that they would be used in space shuttle construction
in Boeing’s Mississippi facility. The appellees moved to dismiss
for the following reasons: (1) because Mississippi does not
recognize a medical monitoring cause of action; (2) for lack of
jurisdiction over the defendants. The district court granted both
motions. Upon reviewing the case, we reverse the district court’s
ruling on jurisdiction and certify the medical monitoring question
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to the Mississippi Supreme Court.
Jurisdiction
The appellants challenge the district court’s ruling that it
did not have personal jurisdiction over Wess-Del because Wess-Del
lacked the requisite contacts with Mississippi. The district
court’s dismissal for lack of personal jurisdiction is reviewed de
novo. Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d
865, 867 (5th Cir. 2001). Where, as here, the district court rules
on a motion to dismiss for lack of personal jurisdiction without an
evidentiary hearing, the plaintiff need only make a prima facie
case that jurisdiction is proper. Quick Technologies, Inc. v. Sage
Group, PLC, 313 F.3d 338, 343 (5th Cir. 2002) (citations omitted).
The district court is not obligated to consult only the assertions
in the plaintiff’s complaint in determining whether a prima facie
case for jurisdiction has been made. Rather, the district court
may consider the contents of the record at the time of the motion,
including affidavits...” Id. (citing Thompson v. Chrysler Motors
Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)). However, in
determining whether a prima facie case for personal jurisdiction
exists on a motion to dismiss, “uncontroverted allegations in the
plaintiff's complaint must be taken as true.” Bullion v. Gillespie,
895 F.2d 213, 217 (5th Cir. 2005) (citing D.J. Investments, Inc.
v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 546
(5th Cir.1985)). See also Kelly v. Syria Shell Petroleum Dev.,
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B.V., 213 F.3d 841, 854 (5th Cir. 2000).
The standard for establishing personal jurisdiction in
diversity actions is well settled. A federal court sitting in
diversity may exercise personal jurisdiction only to the extent
permitted a state court under state law. Fielding v. Hubert Burda
Media, Inc., 415 F.3d 419, 424 (5th Cir. 2005). The court may only
exercise jurisdiction if: “(1) the state’s long-arm statute
applies, as interpreted by the state’s courts, and (2) if due
process is satisfied under the 14th Amendment to the federal
Constitution.” Allred v. Moore & Peterson, 117 F.3d 278 (5th Cir.
1997).
The first determination to be made is whether Mississippi’s
long-arm statute provides for the exercise of personal jurisdiction
over Wess-Del.1 “Under the tort prong of the Mississippi long-arm
statute, personal jurisdiction is proper if any element of the tort
(or any part of any element) takes place in Mississippi.” Allred,
117 F.3d at 282 (citing Smith v. Temco, 252 So. 2d 212, 216 (Miss.
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Mississippi’s long-arm statute provides in relevant part
that: “Any nonresident... corporation not qualified under the
Constitution and laws of this state as to doing business herein,
who shall make a contract with a resident of this state to be
performed in whole or in part by any party in this state, or who
shall commit a tort in whole or in part in this state against a
resident or nonresident of this state, or who shall do any
business or perform any character of work or service in this
state, shall by such act or acts be deemed to be doing business
in Mississippi and shall thereby be subjected to the jurisdiction
of the courts of this state.” Miss. Code Ann. § 13-3-57.
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1971); Western Chain Co. v. Brownlee, 317 So. 2d 418, 421 (Miss.
1975)). Under Mississippi law, causation by the defendant’s
product or injury within the state is sufficient to establish
jurisdiction over the defendant, regardless of whether the
defendant had the specific intent that its products be distributed
or used in Mississippi. Smith v. Temco, 252 So. 2d 212, 216 (Miss.
1971). Here, the injuries and damages allegedly caused by Wess-
Del’s products took place in the state of Mississippi. As a result,
Wess-Del is subject to jurisdiction under the Mississippi long-arm
statute.
The next determination that must be made is whether
jurisdiction over Wess-Del in this case comports with the due
process clause of the 14th Amendment. “Exercising personal
jurisdiction over a nonresident defendant is consistent with due
process when (1) defendant has purposefully availed himself of the
benefits and protections of the forum state by establishing minimum
contacts with the forum state, and (2) the exercise of jurisdiction
over that defendant does not offend traditional notions of fair
play and substantial justice.” Panda Brandywine Corp. v. Potomac
Elec. Power Co., 253 F.3d 865, 867 (5th Cir. 2001) (quoting Alpine
View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 214 (5th Cir.
2000)).
Here, the appellants allege that Wess-Del satisfies prong one,
the minimum contacts test, under the stream of commerce theory
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advanced by the Supreme Court in World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 298 (1980)(“The forum State does not exceed
its powers under the Due Process Clause if it asserts personal
jurisdiction over a corporation that delivers its products into the
stream of commerce with the expectation that they will be purchased
by consumers in the forum State”). This Circuit’s decision in
Ruston Gas Turbines, Inc. v. Donaldson Co., Inc. is instructive.
In Ruston, a Minnesota manufacturer that conducted all its business
in Minnesota was sued in Texas courts. We held that defendants are
subject to specific jurisdiction in Texas courts in situations
where the defendant “not only could have foreseen that the products
might end up in Texas, it knew as a fact that the products were
going to be delivered to a specific user in Houston, Texas.”
Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 420
(5th Cir. 1993).
The appellants allege that Wess-Del knew that the beryllium-
containing products it sold to Boeing in California would be used
by Boeing at the Stennis Space Center in Mississippi. They also
allege that Stennis is the only place where these specific
beryllium-containing products could be used and that Wess-Del knew
this. In response to the appellants’ jurisdictional allegations,
Wess-Del submitted an affidavit from its Chief Financial Officer,
in which the CFO asserts that all of Wess-Del’s transactions with
Boeing took place entirely in California and that it conducts no
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activity whatsoever in Mississippi. The district court relied
heavily on this affidavit in finding that Wess-Del lacked minimum
contacts with Mississippi. However, the assertions in the
affidavit do not contradict the appellants’ allegation that Wess-
Del knew that after it sold products to Boeing in California, those
products would be used by Boeing in Mississippi. Even if every
claim in the affidavit is completely true, Wess-Del could still
have known full well that the beryllium containing products it sold
to Boeing in California were intended to be used exclusively in
Mississippi. “When alleged jurisdictional facts are disputed, we
must resolve all conflicts in favor of the party seeking to invoke
the court's jurisdiction.” Ruston, 9 F.3d at 418. Thus, taking the
jurisdictional allegations of the appellants as true, the
appellants have presented a prima facie case for Wess-Del’s minimum
contacts in Mississippi, under the stream of commerce reasoning set
forth by the Supreme Court in World Wide Volkswagen.
The second prong of the due process analysis requires that
“the exercise of jurisdiction over that defendant does not offend
traditional notions of fair play and substantial justice.” Panda
Brandywine Corp, 253 F.3d at 867. In confronting this issue, a
court examines: (1) the defendant's burden; (2) the forum state's
interests; (3) the plaintiff's interest in convenient and effective
relief; (4) the judicial system's interest in efficient resolution
of controversies; and (5) the state's shared interest in furthering
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fundamental social policies. Ruston, 9 F.3d at 421. Here, there
appears to be no reason why jurisdiction over Wess-Del in
Mississippi would run afoul of notions of fair play or substantial
justice. Mississippi has a substantial interest in protecting its
citizens from injuries from products used within its borders.
Furthermore, to extend jurisdiction over Wess-Del would efficiently
resolve the complaints of an entire class of appellants who allege
that they were harmed in Mississippi. Wess-Del offers no evidence
to support a contrary position. Since Wess-Del’s alleged actions
satisfy the Mississippi long-arm statute, the plaintiffs have
established a prima facie case that Wess-Del has minimum contacts
with Mississippi, and exercising jurisdiction over Wess-Del in
Mississippi would not offend notions of fair play and substantial
justice; the due process clause of the 14th amendment is not
violated by the exercise of jurisdiction in this case. For these
reasons, we reverse the district court’s grant of Wess-Del’s motion
to dismiss for lack of personal jurisdiction.
Medical Monitoring
This case presents the question of whether a medical
monitoring cause of action exists under Mississippi law. This is
an important question of state law which the Mississippi courts
have not as yet resolved. Therefore, the Fifth Circuit, on its
own motion, has determined that our proper course, in this
diversity jurisdiction case in which we are to apply the law of
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the State of Mississippi, is to certify the central question in
this matter to the Supreme Court of Mississippi.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT TO THE SUPREME COURT OF MISSISSIPPI, PURSUANT TO
THE MISSISSIPPI RULE OF APPELLATE PROCEDURE 20. TO THE SUPREME
COURT OF MISSISSIPPI AND THE HONORABLE JUSTICES THEREOF:
I. STYLE OF THE CASE
The style of the case in which this certificate is made is
George Paz, et al., Plaintiffs-Appellants v. Brush Engineered,
Materials, Inc., et al., Defendants-Appellees, Case No. 05-60157,
in the United States Court of Appeals for the Fifth Circuit, on
appeal from the United States District Court for the Southern
District of Mississippi. Federal jurisdiction is based on
diversity of citizenship.
II. STATEMENT OF THE CASE
The appellants filed a class action lawsuit alleging that
they were exposed to toxic beryllium dust at The Boeing Company
(“Boeing”) facilities at the Stennis Space Center in Mississippi
and at Canoga Park in California. According to the appellants,
exposure to airborne beryllium can cause Chronic Beryllium
Disease (“CBD”), an irreversible scarring of the lungs that can
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lead to lung failure and death.2 However, initial symptoms of
the disease do not typically appear until many years after the
exposure. Early detection of the disease during its long latency
period can delay and diminish the debilitation caused by the
disease. However, many who have been exposed to beryllium and
are at risk for CBD never show any signs of the disease and
ultimately experience no ill-effects whatsoever from their
beryllium exposure.
The appellants seek the establishment of a court-supervised
medical monitoring fund that would pay for regular preventive
medical examinations of class members. The appellants do not
allege any present, physical tort injury in the conventional
sense. Nor do they claim that any class members presently have
CBD or that their exposure to beryllium has as yet caused
physical harm to any class member. Rather, the appellants claim
that, as a result of their being wrongfully exposed to beryllium,
ongoing diagnostic examinations are now a medical necessity for
them. The tort injury alleged is the cost to them of these
future examinations, not any present physical harm cause by the
beryllium exposure.
The appellants filed their complaint in the Southern
District of Mississippi on June 30, 2004. The appellants jointly
2
Because this is a review of a 12(b)(6) dismissal, we must
take such facts pleaded in the complaint as true. See Brown v.
Nationsbank Corp., 188 F.3d 579, 586 (5th Cir. 1999).
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moved to dismiss for failure to state a claim upon which relief
could be granted, pursuant to Rule of Federal Civil Procedure
12(b)(6). The district court concluded that the plaintiffs could
not maintain a claim for medical monitoring because such a cause
of action does not exist in Mississippi.
III. QUESTION CERTIFIED
Whether the laws of Mississippi allow for a medical
monitoring cause of action, whereby a plaintiff can recover
medical monitoring costs for exposure to a harmful substance
without proving current physical injuries from that exposure?
This Court disclaims any intention that the Supreme Court of
Mississippi confine its reply to the precise form or scope of the
legal question that we certify. If the Supreme Court of
Mississippi accepts this Certificate, the answers provided by
that court will determine the issue on appeal in this case. The
record in this case, together with the copies of the parties’
briefs, is transmitted herewith.
Conclusion
For the reasons stated above, the district court’s dismissal
of the appellants’ claims against We-Del for lack of personal
jurisdiction is REVERSED. Furthermore, this court has certified
the question regarding whether Mississippi has a medical
monitoring cause of action to the Mississippi Supreme Court.
Reversed in Part; Question Certified to the Supreme Court of
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Mississippi.
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