Timothy Murphy v. Viad Corporation

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

______________________________________________________________________

TIMOTHY PATRICK MURPHY,

Plaintiffs,

v. Case No. 21-10897

VIAD CORPORATION,

Defendant.

__________________________________/

OPINION AND ORDER GRANTING IN PART DEFENDANT’S MOTION TO DISMISS

FOR LACK OF PERSONAL JURISDICTION AND TRANSFERRING CASE TO

THE CENTRAL DISTRICT OF DISTRICT OF CALIFORNIA

Plaintiff Timothy Murphy, a Michigan resident, brings this diversity action against

Defendant Viad Corporation for damages arising from his diagnosis of asbestosis. (ECF

No. 8.) Plaintiff alleges that, during his service in the United States Navy, he was

regularly exposed to asbestos contained in large machinery. (Id.) He maintains that

Defendant is liable as a successor-in-interest to the companies who manufactured and

distributed this machinery, and he brings claims for negligence, strict liability, and

intentional and negligent misrepresentation. (Id., PageID.99–124.)

Before the court is Defendant’s “Motion to Dismiss for Lack of Personal

Jurisdiction” under Federal Rule of Civil Procedure 12(b)(2). (ECF No. 12.) At the joint

request of the parties, for purposes of this motion, the court will assume Defendant

could be liable as a successor-in-interest and will address only whether personal

jurisdiction exists due to the activities of Defendant’s predecessors. (See id.,

PageID.252–53.)

I. BACKGROUND

Plaintiff enlisted in the United States Navy in 1964. (ECF No. 8, PageID.94.) One

year later, he was assigned to work aboard the USS Frank E. Evans (“Evans”), which

was moored in Long Beach, California, at the Long Beach Naval Shipyard. (Id.; ECF

No. 14, PageID.383–84.) Plaintiff served as a machinist’s mate aboard the Evans,

where he operated, maintained, and repaired two freshwater distilling plants, which

produced freshwater from seawater. (ECF No. 8, PageID.94–95.) These distilling plants

were installed on the Evans in approximately 1944, before Plaintiff began his military

service. (Id., PageID.92.) In the course of his duties between approximately August 13,

1965, and December 11, 1968, Plaintiff frequently removed and replaced various parts

on these distilling plants. (Id., PageID.95–97.) The distilling plants’ parts contained a

significant amount of asbestos, and his repairs often “created . . . visible clouds of

asbestos dust,” which Plaintiff often inhaled. (Id., PageID.97–98.)

In 2017, Plaintiff began suffering from shortness of breath, coughing, fatigue, and

an upper respiratory infection. (Id., PageID.98.) On March 20, 2018, he was diagnosed

with asbestosis “caused by his exposure to and inhalation of excessive, hazardous

concentrations of respirable asbestos fibers solely during his military service.” (Id.,

PageID.98–99.)

The distilling plants that gave rise to Plaintiff’s condition were manufactured,

distributed, and sold by an Ohio company called Griscom-Russell; according to Plaintiff,

due to a series of transactions and corporate acquisitions, Defendant is a successor-in-

interest of Griscom-Russell. (Id., PageID.90–91.) Plaintiff alleges that, as such,

Defendant is subject to personal jurisdiction in Michigan due to Griscom-Russell’s

business activities it conducted in Michigan between 1912 and 1962. (Id., PageID.89–

90.) Particularly, Griscom-Russell sold some of its heat exchanger products—which

also contained asbestos—in Michigan, and it was also involved as a contractor for the

Enrico Fermi Atomic Power Plant in Monroe, Michigan. (Id., PageID.90; ECF No. 14,

PageID.376.)

Defendant argues in its motion to dismiss that the court cannot exercise personal

jurisdiction over Defendant because doing so would violate the Due Process Clause.

(ECF No. 12.) Plaintiff filed a response, and Defendant replied. (ECF Nos. 14, 15.)

Having reviewed the parties’ briefs, the court finds a hearing to be unnecessary. E.D.

Mich. LR 7.1(f)(2).

II. STANDARD

After a complaint is filed, a defendant may move to dismiss for “lack of personal

jurisdiction.” Fed. R. Civ. P. 12(b)(2). “For specific jurisdiction to exist in a diversity case,

two factors must be satisfied: the forum state long-arm statute, and constitutional due

process.” Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 679 (6th Cir. 2012).

The “constitutional touchstone” of due process is whether the defendant has

purposefully established minimum contacts in the forum state. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 473 (1985). Constitutionally, “[p]ersonal jurisdiction may be

either ‘general’ or ‘specific.’” Intera Corp. v. Henderson, 428 F.3d 605, 615 (6th Cir.

2005) (citing Bird v. Parson, 289 F.3d 865, 873 (6th Cir. 2002)). General jurisdiction

occurs where “a defendant’s contacts with the forum state are of such continuous and

systematic nature that the state may exercise personal jurisdiction over the defendant

even if the action is unrelated to the defendant’s contacts with the state.” Id.; see also

Miller, 694 F.3d at 679–80. Specific jurisdiction arises “where the claims in the case

arise from or are related to the defendant’s contacts with the forum state.” Intera Corp.,

428 F.3d at 615 (citing Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th

Cir. 1997)).

The Sixth Circuit has established a three-prong test for determining specific

jurisdiction:

First, defendant must purposefully avail himself of the privilege of acting in the

forum state or causing a consequence in the forum state. Second, the cause of

action must arise from the defendant’s activities there. Finally, the acts of the

defendant or consequences caused by the defendant must have a substantial

enough connection with the forum state to make exercise of jurisdiction over the

defendant reasonable.

Id. (quoting S. Mach. Co. v. Mahasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968);

Means v. U.S. Conference of Catholic Bishops, 836 F.3d 643, 649 (6th Cir. 2016).

The plaintiff bears the burden of proving personal jurisdiction. Intera Corp., 428

F.3d at 615. “The weight of the plaintiff’s burden, however, depends on whether the trial

court chooses to rule on written submissions or to hear evidence on the personal-

jurisdiction issue.” Serras v. First Tenn. Bank Nat. Ass’n, 875 F.2d 1212, 1214 (6th Cir.

1989). The court has discretion to hold a hearing or order additional discovery. See

Malone v. Stanley Black & Decker, Inc., 965 F.3d 499, 505 (6th Cir. 2020). “When the

district court ‘rules on written submissions alone’ the burden consists of ‘a prima facie

showing that personal jurisdiction exists.’” Schneider v. Hardesty, 669 F.3d 693, 697

(6th Cir. 2012) (quoting Serras, 875 F.2d at 1214). A prima facie showing of jurisdiction

can be met by establishing, “with reasonable particularity, sufficient contacts between

[the defendant] and the forum state to satisfy the relevant long-arm statute and the Due

Process Clause.” Malone, 965 F.3d at 504. A plaintiff may meet this burden merely

through its complaint. Id. By contrast, when the court chooses to conduct a pretrial

evidentiary hearing, a plaintiff’s burden is higher—it must prove personal jurisdiction

over the defendant by a preponderance of the evidence. Schneider, 669 F.3d at 697.

As noted above, the court will rule on the motion without a hearing. In doing so,

“the pleadings and affidavits submitted must be viewed in a light most favorable to the

plaintiff, and the district court should not weigh ‘the controverting assertions of the party

seeking dismissal.’” Air Prods. and Controls, Inc. v. Safetech Intern., Inc., 503 F.3d 544,

549 (6th Cir. 2007) (quoting Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th

Cir.1991)).

III. DISCUSSION

Plaintiff argues that through Defendant’s predecessors-in-interest—particularly

Griscom-Russell—the court may properly exercise personal jurisdiction over Defendant.

Plaintiff does not allege the court has personal jurisdiction over Defendant via general

jurisdiction; he alleges only specific jurisdiction. (ECF No. 8, PageID.89–90; ECF No.

14.) Plaintiff can demonstrate specific jurisdiction over Defendant only if Plaintiff

satisfies both Michigan’s long-arm statute and constitutional due process. See Miller,

694 F.3d at 679

A. Specific Jurisdiction

Michigan’s long-arm statute provides limited personal jurisdiction over

nonresident corporations for claims “arising out of the act or acts which create any of

the following relationships,” including “[t]he doing or causing any act to be done, or

consequences to occur, in the state resulting in an action for tort,” or more broadly,

where a defendant has transacted “any business within the state.” Mich. Comp. Laws §

600.715. Plaintiff maintains Michigan’s long-arm statute is satisfied because, at a

minimum, Plaintiff has suffered consequences (asbestosis) in Michigan from an

allegedly tortious act. (ECF No. 14, PageID.366–67, 379.) Additionally, Defendant’s

predecessors transacted business within the state because they supplied “major items

of equipment or services” for an atomic power plant in Michigan. (ECF No. 14,

PageID.366, 376.) Plaintiff likely establishes that the statute’s requirements are met, as

Michigan has interpreted the statute to cover a broad range of claims. See Beydoun v.

Wataniya Restaurants Holding, Q.S.C., 768 F.3d 499, 504–05 (6th Cir. 2014) (noting

the use of the word “any” by the Michigan Legislature, “to define the amount of business

that must be transacted[,] establishes that even the slightest transaction is sufficient to

bring a corporation within Michigan’s long-arm jurisdiction”). Thus, assuming Defendant

is a successor in interest to Griscom-Russell, the requirements of Michigan’s long-arm

statute appear to have been satisfied.

However, the principal argument of Defendant’s motion has little to do with

Michigan’s long-arm statute. Defendant’s focus is that subjecting it to personal

jurisdiction here would contravene the Due Process Clause’s constitutional minimum

contacts requirement as articulated in the Sixth Circuit’s three-prong test for specific

jurisdiction. See Intera Corp., 428 F.3d at 615. This presents a closer question in the

present case.

“Although Michigan’s long-arm statute authorizes personal jurisdiction over

[Defendant], a court in Michigan cannot exercise its personal jurisdiction in violation of

[Defendant]’s constitutional right to due process.” Beydoun, 768 F.3d at 504–05

(quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 889 (6th Cir. 2002)).

This requirement ensures that jurisdiction comports with “‘traditional notions of fair play

and substantial justice.’” Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991)

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Thus, as noted

above, specific jurisdiction is established if (1) Defendant purposefully availed himself to

Michigan; (2) Defendant’s activities in Michigan proximately caused Plaintiff’s injuries;

and (3) there is a substantial connection between Defendant and Michigan such that

exercise of personal jurisdiction is reasonable. See Malone 965 F.3d at 503; S. Mach.

Co., 401 F.2d at 381.

1. Purposeful Availment

Proving the first element, purposeful availment, is “the sine quo non for in

personam jurisdiction.” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1263 (6th Cir.

1996) (quoting S. Mach. Co., 401 F.2d at 381–82). Purposeful availment asks “whether

[the defendant] acted or caused a consequence in [the forum state] such that he

invoked the benefits and protections of [the forum state’s] law.” MAG IAS Holdings v.

Schmückle, 854 F.3d 894, 900 (6th Cir. 2017). This requirement “ensures that [the

defendant] could have ‘reasonably anticipated being haled into court there,’” and

ensures defendants are not brought into a court “solely as a result of ‘random,’

‘fortuitous,’ or ‘attenuated’ contacts.” Id. (quoting LAK, Inc. v. Deer Creek Enters., 885

F.2d 1293, 1300 (6th Cir. 1989)); Burger King, 471 U.S. at 475. “[P]urposeful availment

exists if the defendant created a ‘substantial connection’ with the forum state by

engaging in ‘significant activities within the State,’ or by creating ‘continuing obligations’

to residents in that state.” Id. (quoting Burger King, 471 U.S. at 475–76).

At its heart, Plaintiff’s argument for establishing purposeful availment is that

Griscom-Russell, Defendant’s predecessor, “manufactured and distributed a heat

exchanger product line between 1912 and 1962, and placed hundreds of thousands of

units from that product line in the stream of interstate commerce.” (ECF No. 8,

PageID.89–90.) He further alleges in his complaint that Griscom-Russell:

(a) transacted voluminous business in the State of Michigan for about fifty (50)

years;

(b) purposefully availed itself of the privilege of acting in Michigan for about fifty

(50) years;

(c) placed in the stream of interstate commerce its products, including its heat

exchanger product line, which contained and integrated [asbestos-containing

materials], specifically targeting Michigan business consumers;

(d) advertised its products, including its heat exchanger product line, which

contained and integrated [asbestos-containing materials], extensively in

Michigan;

(e) established advice and support networks for Michigan customers; and

(f) marketed its products, including its heat exchanger product line which

contained and integrated [asbestos-containing materials], through distributors

agreeing to serve as its sales agents in Michigan.

(Id., PageID.90.)

More specifically, Plaintiff explains that “in selling its product line of fungible heat

exchangers, [Griscom-Russell] directly served a market for those products in Michigan.”

(ECF No. 14, PageID.378.) He alleges Griscom-Russell “marketed and sold its fungible

heat exchanger product line in Michigan and encouraged local businesses to purchase

heat exchangers.” (Id.)

Plaintiff’s complaint and supporting documents, although lacking in specificity,

arguably establish that Defendant, through Griscom-Russell, purposefully availed itself

of the privileges of Michigan through its transactions in the state. See Malone 965 F.3d

at 504–05 (finding a complaint sufficiently showed the defendant purposefully availed

itself to a forum state despite the complaint being “sparse on detail”). But purposeful

availment is far from the end of the inquiry. As the Sixth Circuit recently acknowledged,

“the first and second prongs are related,” and the test requires the court to link “how

[Defendant] purposely availed itself of [Michigan’s] markets” with Plaintiff’s injuries. Id. at

503 (emphasis in original).

2. “Arises out of” or “Relates to”

The “arising from” prong, according to the Sixth Circuit, “requires that

[Defendant’s] contacts be ‘related to the operative facts of the controversy.’” MAG IAS

Holdings, 854 F.3d at 903. The Due Process Clause requires “an affiliation between the

forum and underlying controversy, principally, [an] activity or occurrence that takes

place in the forum State,” and therefore confines a court to adjudicating “issues deriving

from, or connected with, the very controversy that establishes jurisdiction.” Bristol-Myers

Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017). In other words, there must

be a relationship between “the defendant, the forum, and the litigation,” Walden v. Fiore,

571 U.S. 277, 283–84 (2014), meaning the claims must “arise out of or relate to the

defendant’s contacts” in the state. Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., 141

S. Ct. 1017 (2021) (quoting Bristol-Myers, 137 S. Ct. at 1025). When there is no

connection between the defendant, forum, and the specific claims at issue, “specific

jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in

the State.” Bristol-Myers, 137 S. Ct. at 1781.

The Sixth Circuit has noted this prong has a “lenient” standard. Lyngaas v. Ag,

992 F.3d 412, 423 (6th Cir. 2021) (quotation omitted). See also MAG IAS Holdings, 854

F.3d at 903 (“We have said this is a “lenient standard,” requiring only that the cause of

action have a “substantial connection” to the defendant’s activity in the state.”)

(quotation omitted). This standard is met “when ‘the operative facts are at least

marginally related to the alleged contacts’ between the defendant and the forum.”

Lyngaas, 992 F.3d at 423 (quoting Bird, 289 F.3d at 873). As more fully explained

below, the court finds that Plaintiff has failed to demonstrate even a marginal relation

between and among the operative facts, Defendant, and Michigan.

To support his argument that a sufficient connection exists, Plaintiff asserts in his

complaint that Griscom-Russell maintained a heat exchanger product line that it placed

into the stream of interstate commerce and also targeted Michigan business

consumers. (ECF No. 8, PageID.90.) His main contention is that because Griscom-

Russell produced one product that contained asbestos for use on a naval ship (the

freshwater distilling plants that caused his injuries) and designed another product that

contained asbestos for use in Michigan at an atomic power plant (a steam generator),

there is a sufficient relationship between his injuries, Defendant, and Michigan. (ECF

No. 14, PageID.379.) Thus, while Plaintiff admits that “the specific products [Griscom-

Russell] manufactured and sold and to which [Plaintiff] was exposed were not sold in

Michigan,” he notes other Griscom-Russell’s products were. (Id., PageID.380.)

In support of his contention that this “relationship” provides a basis for specific

jurisdiction, Plaintiff relies heavily on the newly decided Ford Motor Company case. 141

S. Ct. at 1026. The Supreme Court succinctly summarized Ford:

In each of these two cases, a state court held that it had jurisdiction over

Ford Motor Company in a products-liability suit stemming from a car

accident. The accident happened in the State where suit was brought. The

victim was one of the State’s residents. And Ford did substantial business

in the State—among other things, advertising, selling, and servicing the

model of vehicle the suit claims is defective. Still, Ford contends that

jurisdiction is improper because the particular car involved in the crash

was not first sold in the forum State, nor was it designed or manufactured

there. We reject that argument. When a company like Ford serves a

market for a product in a State and that product causes injury in the State

to one of its residents, the State’s courts may entertain the resulting suit.

Id. at 1022. In finding personal jurisdiction in Ford, the Court explained that a “strong

relationship among the defendant, the forum, and the litigation” existed because “Ford

had systematically served a market in [the forum states] for the very vehicles that the

plaintiffs allege malfunctioned and injured them in those States.” Id. at 1028. (emphasis

added). The fact that “Ford had advertised, sold, and serviced those two car models in

[the forum states]” was crucial; significantly, it noted, “[c]ontrast a case, which we do not

address, in which Ford marketed the models in only a different State or region.” Id.

(emphasis added). In cases where a defendant is “regularly marketing a [product] in a

State,” a defendant has “clear notice” it will be subject to the jurisdiction of that state. Id.

at 1030.

Plaintiff explains that Ford demands a finding of personal jurisdiction because, “in

Ford Motor Co terms, it is not the same model of [Griscom-Russell’s] car that ran

[Plaintiff] over, but it was still a [Griscom-Russell] car and it still ran him over here in

Michigan.” (ECF No. 14, PageID.380.) But the Court’s holding in Ford does not confer

personal jurisdiction over defendants as broadly as Plaintiff appears to believe. The

Court was careful to warn that where a plaintiff alleges a defendant’s activities “relate to”

a plaintiff’s claims, it “does not mean anything goes.” Id. at 1026. A defendant must still

be able to “reasonably anticipate being haled into” the forum state “to defend actions

‘based on’ products causing injury there.” Id. at 1027. (citing Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 781 (1984)).

In this case, even viewing the facts in a light most favorable to him, Plaintiff has

not established a marginal relation between Griscom-Russell’s activities in Michigan

and the products that injured Plaintiff across the continent. The freshwater distilling

plants that are alleged to be defective, the very things that caused Plaintiff’s injuries,

had absolutely no connection to Michigan. Plaintiff does not allege any of these distilling

plants had ever been marketed in Michigan or ever crossed Michigan’s borders. Indeed,

Plaintiff concedes that they were never sold or marketed in Michigan. (Id., PageID.380.)

While Griscom-Russell may have in some way purposefully availed itself of conducting

some business in Michigan, there is no chance Griscom-Russell—and Defendant as its

successor—could reasonably anticipate being haled into a Michigan court for claims like

Plaintiff’s. How could they expect that Griscom-Russell’s saltwater evaporators would

eventually cause them to be summoned to litigate in a state that is surrounded by

Earth’s largest system of freshwater lakes, salt-free since c. 14,000 b.c.e.? They could

not.

Plaintiff’s attempt to analogize this case to Ford therefore fails. In Ford, the Court

noted that the models of the vehicles at issue had been aggressively marketed in the

forum state, and those very models of vehicles harmed the plaintiffs inside the forum

state. See Ford Motor Co., 141 S. Ct. at 1028. Here, by contrast, Plaintiff is not alleging

his injuries are related to any of Griscom-Russell’s steam generators or heat

exchangers that were in Michigan.1 Instead, Plaintiff alleges that he was harmed during

1 In this regard, Plaintiff’s briefly attempts to connect Michigan with his claims by

describing all of Griscom-Russell’s products as “apparently fungible” heat exchangers.

This off-hand assertion contradicts his previous admission that the products in Michigan

and aboard the Evans were not the same. (ECF No. 14, PageID.380 (“[T]he specific

products [Griscom-Russell] manufactured and sold and to which [Defendant] was

exposed were not sold in Michigan.” (emphasis added).) Additionally, the evidence he

uses to support the claim that the products on the Evans and the products in Michigan

were “fungible,” do not support his contention, as the documents he cites apparently

show only that Griscom-Russell was involved as contractor designing steam generators,

his time in California and on the Evans as he worked near two freshwater distilling

plants. (ECF No. 8, PageID.92.)

Plaintiff’s last-ditch effort to establish personal jurisdiction is an allegation that,

because both the products on the Evans and the products in Michigan carried asbestos

in its parts, a sufficient connection with the forum state exists.2 (ECF No. 14,

PageID.381.) But this does not rise to even a “marginal relation” between Michigan and

the operative facts of this case. Establishing a prima facie showing requires Plaintiff to

allege “with reasonable particularity, sufficient contacts between [the defendant] and the

forum state to satisfy . . . the Due Process Clause.” Malone, 965 F.3d at 504. That two

distinct products both contained asbestos has no bearing on the propriety of Michigan

exercising personal jurisdiction over Defendant. Devoid of reasonable particularity, such

a contention simply does not establish any relationship between the operative facts and

what Griscom-Russell marketed or distributed in Michigan.

In summary, while the operative facts need only be marginally related to the

defendant’s contacts and Michigan, Plaintiff has failed to meet this burden. The main

issues in this case derive from Defendant contracting asbestosis from his time exposed

particularly for use in a Michigan atomic power plant. (ECF No. 14-5, PageID.441–65;

ECF No. 14-6, PageID.466–70.)

2 Considering Plaintiff’s admission that the products that caused him harm and the

products used in Michigan were different (ECF No. 14, PageID.380), and also

recognizing the distinct nature of these two products, the court finds that allowing further

discovery or holding an evidentiary hearing on this issue would not be fruitful. See

Malone, 965 F.3d at 506 (noting that the plaintiff’s inability to produce evidence

suggested the court should hold an evidentiary hearing or additional discovery on the

issue of personal jurisdiction). In fact, Plaintiff’s response spent considerable time

explaining that the court should not hold a hearing since Defendant did not request one.

(See, e.g., ECF No. 14, PageID.370 (“It bears repeating that [Defendant] has not

requested an evidentiary hearing.”).)

to two freshwater distilling plants on the Evans. (ECF No. 8, PageID.92–93.) At that

time, Defendant was stationed at the United States Naval Station in Long Beach,

California. (ECF No. 14, PageID.383.) That Plaintiff moved to Michigan after his

exposure to the distilling plants and suffers from asbestosis in this state is insufficient.

See, e.g., Walden, 571 U.S. at 290 (“The proper question is not where the plaintiff

experienced a particular injury or effect but whether the defendant’s conduct connects

him to the forum in a meaningful way.”). Plaintiff cannot establish a connection between

his claims and Michigan by linking the saltwater evaporators stationed on the Evans

with land-based steam generators that were used in an atomic power plant in Michigan.

To exercise personal jurisdiction over Defendant on this basis would require Defendant

to appear in Michigan solely as a result of completely unrelated contracts, which the

Due Process Clause prohibits. See MAG IAS Holdings, 854 F.3d at 900. In such

circumstances, the Supreme Court has made clear “specific jurisdiction is lacking

regardless of the extent of a defendant’s unconnected activities in the State.” Bristol-

Myers, 137 S. Ct. at 1781; accord Ford Motor Co., 141 S. Ct. at 1026, 1031.

3. Reasonableness

The court’s conclusion under the second prong sheds light on the third, which

analyzes the reasonableness of exercising personal jurisdiction. In determining whether

personal jurisdiction would be reasonable, courts consider three factors: “[1] the burden

on the defendant, [2] the interests of the forum State, and [3] the plaintiff's interest in

obtaining relief.” Beydoun, 768 F.3d at 508 (quoting Asahi Metal Indus. Co. v. Super.

Court of Cal., 480 U.S. 102, 113 (1987)). Absent any connection between Plaintiff’s

claims and Michigan, exercising personal jurisdiction would be unreasonable.

First, as to whether exercising personal jurisdiction would burden Defendant,

Plaintiff alleges only that Defendant “has owned property” in Michigan and previously

was a much larger corporation with some business in Michigan. (ECF No. 14,

PageID.382.) There is no allegation, however, that as a Delaware corporation with its

principal place of business in Arizona, it currently has any connection with Michigan.

(ECF No. 14-8, PageID.479–82.) To be sure, no single factor is dispositive, and while

acknowledging the Sixth Circuit has upheld specific jurisdiction even where the

defendant is forced to travel to a forum state,3 this factor weighs against establishing

personal jurisdiction given that Griscom-Russell’s business in Michigan had nothing to

do with Plaintiff’s claims.

Second, while Michigan undoubtedly has an interest in protecting the legal rights

of its citizens, Youn v. Tack, Inc., 324 F.3d 409, 419 (6th Cir. 2003), the state’s interests

are diminished because there is no affiliation between these claims and Michigan. See,

e.g., Service First Logistics, Inc. v. A-One Pallet, Inc., No. 2:19-CV-12616-TGB, 2020

WL 4366063, at *6. Plaintiff only recently discovered he suffers from asbestosis, and it

coincidentally was in Michigan—all other facets of the “underlying controversy,”

however, relate to his time on the Evans and in California. Bristol-Myers, 137 S. Ct. at

1780.

Finally, the court acknowledges the strong interest Plaintiff has in obtaining relief.

Plaintiff, as a veteran of the United States Navy, was essentially poisoned during his

service in the 1960s and later diagnosed with asbestosis in 2018. He is currently

3 See, e.g., Lanier v. American Board of Endodontics, 843 F.2d 901, 911 (6th Cir.

1988).

disabled. (Id. Page ID.89.) He was prescribed “supplemental oxygen therapy” in 2019.

(Id.) While his injuries are serious, it is nonetheless necessary that he litigates his

claims in the proper jurisdiction so as to not offend traditional notions of fair play and

justice. Considering all circumstances present in this case, the exercise of personal

jurisdiction is unreasonable. Yet, the facial validity of his claims guides the court in its

decision to not dismiss his case but rather transfer it to the Central District of California,

as explained below.

B. Transfer of the Action

In light of the court’s conclusion that it lacks personal jurisdiction over Defendant,

the court must determine whether to transfer this case to the appropriate venue or to

dismiss it. See 28 U.S.C. §§ 1406(a), 1631. In cases where personal jurisdiction over

the defendant is absent, “the court shall, if it is in the interest of justice, transfer such

action or appeal to any other such court in which the action or appeal could have been

brought at the time it was filed or noticed.” 28 U.S.C. § 1631; see also Roman v.

Ashcroft, 340 F.3d 314, 328–29 (6th Cir. 2003). A transfer is also permitted pursuant to

28 U.S.C. § 1406(a),4 which allows a transfer even when the plaintiff files suit in an

improper venue and in a court that lacks jurisdiction. Goldlawr, Inc. v. Heiman, 369 U.S.

463, 466 (1962) (“The language of § 1406(a) is amply broad enough to authorize the

transfer of cases, however wrong the plaintiff may have been in filing his case as to

venue, whether the court in which it was filed had personal jurisdiction over the

defendants or not.”).

4 “The district court of a district in which is filed a case laying venue in the wrong division

or district shall dismiss, or if it be in the interest of justice, transfer such case to any

district or division in which it could have been brought.” 28 U.S.C. § 1406(a).

The decision whether to transfer “in the interest of justice” or to dismiss the case

rests within the discretion of the trial court. Audi AG & Volkswagen of Am., Inc. v. Izumi,

204 F.Supp.2d 1014, 1017 (E.D. Mich. 2002) (citing 28 U.S.C. § 1406). A transfer is

favored over a dismissal because a transfer facilitates the adjudication of a dispute on

the merits. Goldlawr, 369 U.S. at 466–67. “Unless evidence exists that the case was

brought in the improper venue in bad faith or to harass the defendant, the interest of

justice generally requires a transfer rather than a dismissal.” See, e.g., Twin Flames

Universe.com, Inc. v. Cole, No. 20-11660, 2021 WL 1105247, at *8 (quoting De La

Fuente v. ICC, 451 F.Supp. 867, 872 (N.D.Ill.1978)).

Here, Plaintiff has requested a transfer of venue as an alternative to dismissal.

There is no evidence that Plaintiff filed this action in Michigan to harass Defendant.5

While Defendant argues that this case should be dismissed rather than transferred due

to Plaintiff’s “lack of diligence,” Plaintiff is still entitled to his day in court where his

injuries are legitimate. Because (1) the Evans was moored in Long Beach, California,

(2) Plaintiff ostensibly alleges Defendant’s predecessors purposefully availed

themselves of California through its transactions with the United States Navy, and (3)

the products at issue harmed Plaintiff while he was aboard the Evans or in California,

the court finds that transfer to the Central District of California6 would be both

appropriate and in the interests of justice. (ECF No. 14, PageID.383–85.)

5 The court recognizes that Plaintiff previously sued Defendant in federal court in Illinois.

The parties, however, stipulated to that dismissal, and there is no clear evidence of bad

faith by filing a second action in Michigan.

6 Plaintiff requested transfer to the Southern District of California; however, Long Beach

is located in the state’s Central District.

V. CONCLUSION

For the reasons explained above, Plaintiff has not met his burden of establishing

personal jurisdiction over Defendant through Defendant’s predecessors. However, the

court deems outright dismissal of the action inappropriate. The court finds transfer of the

case to the Central District of California necessary to serve the interests of justice.

Accordingly,

IT IS ORDERED that Defendant’s “Motion to Dismiss for Lack of Personal

Jurisdiction” (ECF No. 12) is GRANTED IN PART. It is GRANTED in that the court finds

that it lacks personal jurisdiction, but the court declines to grant the requested relief of

dismissal. Instead,

IT IS ORDERED that the case is TRANSFERRED to the Central District of

California, Southern Division.

s/Robert H. Cleland /

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: October 1, 2021

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, October 1, 2021, by electronic and/or ordinary mail.

s/Lisa Wagner /

Case Manager and Deputy Clerk

(810) 292-6522

S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\21-10897.MURPHY.MotionToDismissLackOfPersonalJurisdiction.MAZ.RHC.2.docx