The D.S. Brown Company v. White-Schiavone, JV

United States District Court

District of Massachusetts

)

The D.S. Brown Company, )

)

Plaintiff, )

)

v. )

) Civil Action No.

White-Schiavone, JV, et al. ) 19-30095-NMG

)

Defendants. )

)

)

)

MEMORANDUM & ORDER

GORTON, J.

This consolidated action arises from a public works project

whereby the materials supplier, The D.S. Brown Company (“D.S.

Brown” or “plaintiff”), provided the builder, White-Schiavone,

J.V. (“White-Schiavone”), with a certain kind of concrete that

purportedly was defective. Plaintiff brings an assortment of

state law claims and a petition for declaratory judgment against

White-Schiavone, the general contractor, J.F. White Contracting

Co. (“J.F. White”) and Schiavone Construction Co., LLC

(“Schiavone”), the joint venture partners (collectively “the

Schiavone defendants”), and Huntsman International LLC

(“Huntsman”), a materials manufacturer, (collectively “the

defendants”) to determine the contractual responsibilities of

each party with respect to the defective concrete.

In response, the Schiavone defendants have filed a joint

motion to dismiss for failure to state a claim (Docket No. 22)

and defendant Huntsman has filed a motion to dismiss for lack of

subject matter jurisdiction, lack of personal jurisdiction and

failure to state a claim (Docket No. 36), in which all other

defendants have joined (Docket No. 43). In a Memorandum and

Order entered on October 29, 2020, this Court denied the motion

to dismiss for lack of subject matter jurisdiction while

retaining under advisement the other grounds for dismissal. The

Court addresses the remaining pending motions here and will, for

the following reasons, allow the motion filed by Huntsman but

deny the motion filed by the Schiavone defendants.

I. Background

The Court set forth the convoluted procedural history and

the factual background of this case in greater detail in its

recent Memorandum and Order, see Docket No. 88, but focuses,

here, on the background relevant to the pending motions.

A. The Parties and Procedural History

Plaintiff is an Ohio corporation that designs, manufactures

and supplies engineered products for the bridge and highway

industries. Defendant White-Schiavone is a Massachusetts joint

venture that was awarded a construction contract by the

Massachusetts Department of Transportation (“MassDOT”) to

replace the bridge decking on the I-91 viaduct in Springfield,

Massachusetts (“the Project”). White-Schiavone is comprised of

two joint venture partners: 1) J.F. White Contracting Co., a

Massachusetts corporation with its principal place of business

in Massachusetts and 2) and Schiavone Construction Co., LLC, a

limited liability company. Defendant Huntsman International LLC

is a Texas-based limited liability company that designs,

manufacturers and sells chemical products.

Plaintiff commenced this action in the Western Division of

this Court on July 2, 2019 and subsequently amended its

complaint twice. In the Second Amended Complaint (“SAC”),

plaintiff alleges eight counts. Count I seeks a declaratory

judgment to determine the contractual responsibilities of each

party in connection with the purportedly defective delcrete.

Counts II through VIII are brought against Huntsman, asserting

that it supplied plaintiff with defective delcrete and, as a

result, breached its implied warranty of merchantability (II);

was grossly negligent (III); breached its contract (IV); was

negligent (V); must, under common law indemnification

principles, indemnify plaintiff (VI); breached its implied

warranty of fitness (VII); and violated M.G.L. c. 93A, §§ 2 and

11 (VIII).

Defendants have filed motions to dismiss the SAC in its

entirety. White-Schiavone and its joint venture partners have

moved to dismiss the SAC for failure to state a claim, while

Huntsman has moved to dismiss the SAC for lack of subject matter

jurisdiction, lack of personal jurisdiction and failure to state

a claim. White-Schiavone and its partners have joined

Huntsman’s motion. This Court recently denied that motion, in

part, with respect to subject matter jurisdiction.

On the same day Huntsman filed its motion to dismiss, it

also filed a complaint in Texas state court, seeking a

declaratory judgment against D.S. Brown in connection with the

defective delcrete. See Huntsman International LLC v. D.S. Brown

Co., No 19-11-14861 (Co. Ct., Montgomery County, Tex. Nov. 1,

2019).

Soon thereafter, White-Schiavone filed a complaint against

D.S. Brown in the Massachusetts Superior Court, seeking to hold

D.S. Brown liable for the harm caused by the defective delcrete.

See White-Schiavone, JV v. The D.S. Brown Co., No. 19-3663

(Mass. Super. Ct., Nov. 21, 2019). D.S. Brown subsequently

removed the case to the Western Division of this Court and filed

a counterclaim and third-party complaint against White-

Schiavone, J.F. White, Schiavone and Huntsman, asserting the

same claims as those alleged in the SAC. A few weeks after

removal, plaintiff moved to consolidate the two cases and White-

Schiavone simultaneously filed a motion to transfer both cases

to the Eastern Division of the District of Massachusetts. The

motion to transfer was allowed on April 17, 2020, bringing both

cases to this Session of this Court. The motion to consolidate

was allowed on October 29, 2020.

B. The Facts

As part of the Project, White-Schiavone executed a

materials contract (“the Contract”) with D.S. Brown in or about

June, 2015, under which plaintiff agreed to supply White-

Schiavone with a certain kind of concrete called “delcrete,”

among other materials. The delcrete was used in the

installation of expansion joints under the I-91 viaduct bridge

deck. Plaintiff asserts that it did not itself manufacture the

delcrete but instead purchased it from Huntsman International

LLC pursuant to independent Purchase Orders. The Purchase

Orders directed Huntsman to ship the delcrete to D.S. Brown in

Ohio in May, July, and August, 2017, after which plaintiff

forwarded the material to White-Schiavone in Massachusetts.

By mid-2017, White-Schiavone had received shipments of

delcrete from plaintiff and began using it to install the

expansion joints. Soon thereafter, however, White-Schiavone

reported to MassDOT that the delcrete was causing the expansion

joints to fail because it was crumbling, de-bonding and

separating from the bridge deck. It is unclear what caused the

failures. Plaintiff submits that they were caused by either the

storage, handling or installation procedures of White-Schiavone

or the manufacturing process of Huntsman.

In or about December, 2017, plaintiff began to supply

White-Schiavone with a different batch of delcrete (“delcrete

2”) which functioned properly. MassDOT, in response, directed

White-Schiavone to replace all previously installed expansion

joints with new joints using delcrete 2. Plaintiff contends

that White-Schiavone subsequently threatened to file suit

against it for supplying defective delcrete, causing plaintiff

to initiate this action for declaratory judgment.

II. Huntsman’s Motion to Dismiss for Lack of Personal

Jurisdiction

A. Huntsman’s Argument

Huntsman alleges that plaintiff has failed to make a prima

facie showing that this Court has authority to exercise

jurisdiction over the Texas-based company because it has

proffered no evidence to establish that Huntsman had contacts

with Massachusetts that relate to this litigation.

Huntsman submits that the SAC does not state a claim for

general jurisdiction because it does not allege that Huntsman

has any presence in Massachusetts, such as offices, facilities,

real or personal property or employees, let alone a presence

that renders the company “at home” in the Commonwealth. Indeed,

the only office location of Huntsman that is mentioned in the

SAC is its principal place of business, in Houston, Texas.

Huntsman also contends that plaintiff has fallen short of

establishing specific jurisdiction because none of the three

shipments of delcrete at issue in this case was shipped by

Huntsman to Massachusetts. Instead, as alleged in the SAC and

confirmed by the incorporated Purchase Orders, the subject

materials were shipped by Huntsman from Texas directly to D.S.

Brown in Ohio. Furthermore, Huntsman asserts that it was not a

party to the Contract between White-Schiavone and D.S. Brown.

Accordingly, it avers that

there is no basis for finding that Huntsman purposefully

availed itself of the protections of Massachusetts law.

It is irrelevant, Huntsman stresses, that its product ended up

in Massachusetts because the final destination of the delcrete

was due only to the unilateral action of D.S. Brown.

D.S. Brown responds that the Court should exercise

1) general jurisdiction over Huntsman because the company is

registered to do business in Massachusetts and/or 2) specific

jurisdiction over Huntsman because, in 2016, it delivered

shipments of delcrete directly to White-Schiavone in

Massachusetts. Although plaintiff did not mention those

shipments in the SAC, it now avers that the 2016 delcrete also

caused injury that was suffered in Massachusetts. White-

Schiavone has responded, however, that it is not seeking to

recover any damages resulting from delcrete received by the

joint venture prior to 2017.

With respect to the 2016 shipment of delcrete, Huntsman

rejoins that 1) the shipment was not mentioned in the SAC, 2) it

has nothing to do with this dispute and 3) the destination of

that shipment was determined exclusively by D.S. Brown.

B. Legal Standard

On a motion to dismiss for lack of personal jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(2), the plaintiff bears the

burden of showing that the Court has authority to exercise

jurisdiction over defendants. Cossart v. United Excel Corp., 804

F.3d 13, 18 (1st Cir. 2015). Where, as here, the Court will

decide a motion to dismiss for lack of personal jurisdiction

without first holding an evidentiary hearing, the Court applies

the “prima facie” standard of review and takes the plaintiff’s

properly documented evidentiary proffers as true and

construe[s] them in the light most favorable to

[plaintiff’s] jurisdictional claim.

A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir.

2016). A plaintiff cannot, however, rely on “unsupported

allegations” and “must put forward evidence of specific facts to

demonstrate jurisdiction exists.” Id. (internal citations

omitted); see also Philips v. Prairie Eye Center, 530 F.3d 22,

26 (1st Cir. 2008) (explaining that, in order for a plaintiff to

make a prima facie showing of jurisdiction, it “ordinarily

cannot rest upon the pleadings but is obliged to adduce evidence

of specific facts.”).

In a diversity suit, this Court acts as “the functional

equivalent of a state court sitting in the forum state.” See

Astro–Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8

(1st Cir. 2009). As such, to make a prima facie showing of

personal jurisdiction in diversity cases, the plaintiff must

demonstrate that the exercise of jurisdiction 1) is statutorily

permitted and 2) coheres with the Due Process Clause of the

Fourteenth Amendment of the United States Constitution. Id.

Because the Massachusetts long-arm statute, M.G.L. c. 223A, § 3,

extends jurisdiction to the limits of the Constitution, the

Court proceeds directly to the constitutional analysis. See

Adelson v. Hananel, 510 F.3d 43, 49 (1st Cir. 2007).

The Due Process Clause demands a showing by plaintiff of

either general or specific jurisdiction. Negron-Torres v.

Verizon Commc’n Inc., 478 F.3d 19, 24 (1st Cir. 2007). To

establish either, plaintiff must demonstrate that the subject

defendant has “minimum contacts” with Massachusetts such that

the exercise of personal jurisdiction over it accords with

“traditional notions of fair play and substantial justice.” Id.

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945)).

1. General Jurisdiction

General jurisdiction exists when the defendant has engaged

in “continuous and systematic activity, unrelated to the suit,

in the forum state.” United States v. Swiss Am. Bank, 274 F.3d

610, 618 (1st Cir. 2001). Exercising general jurisdiction over

an entity that is neither incorporated nor has its principal

place of business in the forum is exceptional and must be

reserved for situations in which the entity is “essentially at

home in the forum State.” See Daimler AG v. Bauman, 571 U.S.

117, 133 n.11, 139 n.19 (2014) (quoting Goodyear Dunlop Tires

Operations, S.A. v Brown, 564 U.S. 915, 919 (2011)).

Here, plaintiff has not established that this Court has

general jurisdiction over Huntsman because it has provided no

evidence showing that the Texas-based company has engaged in

continuous or systematic activity in Massachusetts. Missing

from plaintiff’s proffers is any evidence that Huntsman has an

office, property or even employees in the state. Instead, it

submits only that Huntsman is registered to do business here, a

fact that, without more, fails to create the exceptional

circumstance required to render Huntsman “essentially at home”

in Massachusetts and fails to convince this Court that

jurisdictional discovery is warranted. Negron-Torres, 478 F.3d

at 27 (noting that jurisdictional discovery was unwarranted

because the plaintiff failed to make a colorable case for

personal jurisdiction).

2. Specific Jurisdiction

Specific jurisdiction, on the other hand, requires a

“demonstrable nexus” between the claims of the plaintiff and the

contacts of the defendant with the forum state. Swiss Am. Bank,

274 F.3d at 618. Such nexus can be created only by the

defendant’s contacts and not by the unilateral activity of the

plaintiff with the forum state. Harlow v. Children’s Hosp., 432

F.3d 50, 58 (1st Cir. 2005).

In analyzing such contacts, this Court must consider three

factors: relatedness, purposeful availment and reasonableness.

See Astro-Med Inc., 591 F.3d at 9. An affirmative finding as to

all three is required before a court can exercise specific

jurisdiction over a defendant. Phillips Exeter Academy v. Howard

Phillips Fund, 196 F.3d 284, 288 (1st Cir. 1999).

a. Relatedness

The first factor concerns whether “the claim underlying the

litigation . . . directly arise[s] out of, or relate[s] to, the

defendant’s forum-state activities.” Astro-Med, Inc., 591 F.3d

at 9 (internal quotation marks omitted). Although that inquiry

is a “flexible, relaxed standard,” id. (internal citations

omitted), it cautions that the exercise of personal jurisdiction

is improper if the “defendant’s forum-state contacts seems

attenuated and indirect.” Harlow, 432 F.3d at 61.

Here, the claims underlying this litigation do not relate

to any contacts Huntsman has had with Massachusetts. As alleged

in the SAC and conceded by White-Schiavone, only three shipments

of delcrete that were sent by Huntsman are at issue in this

action and all of them were sent in 2017 directly to D.S. Brown

in Ohio. Thereafter, D.S. Brown unilaterally forwarded the

product to White-Schiavone in Massachusetts. There is no

evidence demonstrating that Huntsman played any role in getting

the delcrete from Ohio to Massachusetts or that its contacts

with any party to this action extended beyond Ohio.

Although, in its opposition to Huntsman’s motion, plaintiff

proffers a Purchase Order from 2016, pursuant to which Huntsman

shipped delcrete directly to White-Schiavone in Massachusetts,

that shipment is not a subject of or even mentioned in the SAC

and is, thus, outside of the scope of this litigation.

Furthermore, White-Schiavone has submitted that it does not seek

recovery of any damages associated with the 2016 delcrete,

thereby eliminating any dispute over those shipments. See

Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995) (“The

relatedness requirement is not met merely because a plaintiff’s

cause of action arose out of the general relationship between

the parties; rather, the action must directly arise out of the

specific contacts between the defendant and the forum state.”).

b. Purposeful Availment

In any event, plaintiff has failed to establish the second

factor concerning whether defendant’s contacts with

Massachusetts represent a “purposeful availment by defendants of

the privilege of conducting business in that State,” making any

contacts with it foreseeable and voluntary. Sawtelle, 70 F.3d at

1389, 1393; Astro-Med, Inc., 591 F.3d at 10. Purposeful

availment is required to ensure that specific jurisdiction is

premised on more than “random, isolated, or fortuitous” contacts

by defendant with the forum state or “the unilateral activity of

another party or third party.” See Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475 (1985) (internal citations and

quotation marks omitted).

Accordingly, the place of injury is insufficient alone to

establish specific personal jurisdiction. See Walden v. Fiore,

571 U.S. 277, 290 (2014). Furthermore,

[t]he placement of a product into the stream of commerce,

without more, is not an act of the defendant purposefully

directed toward the forum State . . . [A] defendant’s

awareness that the stream of commerce may or will sweep the

product into the forum State does not convert [that] into

an act purposefully directed toward the forum State.

Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cnty.,

480 U.S 102, 112 (1987).

Although the Court is cognizant that resolving this entire

dispute in one forum would be more efficient for all parties, it

will not fabricate personal jurisdiction to achieve that goal.

It finds instead that, in manufacturing, selling and shipping

the subject delcrete, Huntsman did not purposefully avail itself

of the privilege of conducting business in Massachusetts. Nor

did it purposefully direct any activities toward this state when

it executed the three Purchase Orders with an Ohio corporation

and sent three shipments of delcrete to Ohio. That the delcrete

ended up in Massachusetts was the result of unilateral activity

of D.S. Brown. See Walden, 571 U.S. at 285 (“[T]he plaintiff

cannot be the only link between the defendant and the forum.”).

The analysis is unaltered by the fact that, when Huntsman

placed the delcrete into the stream of commerce, the Texas

company could have expected the material to be delivered to

Massachusetts. Such an expectation is insufficient to be deemed

purposefully directing its product toward Massachusetts. See

Asahi Metal Indus., 480 U.S. at 112 (explaining that the

defendant’s awareness that its product may end up in the forum

state is not enough to establish purposeful availment). Nor is

it altered by the fact that the injury to White-Schiavone was

sustained in Massachusetts because the place of the injury alone

is insufficient to establish specific jurisdiction. See Walden

v. Fiore, 571 U.S. 277, 290 (2014) (“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.”).

c. Reasonableness

The final factor to consider is whether imposing

jurisdiction on the defendant would be reasonable, considering

1) the burden on the defendants to appear, 2) the forum state’s

interest in adjudicating the dispute, 3) plaintiff’s interest in

convenient and effective relief, 4) the judicial system’s

interest in obtaining efficient resolution of controversies and

5) the common interest of all sovereigns in promoting

substantive social policies. See Burger King Corp., 471 U.S. at

477. These considerations are not a checklist but should

instead be used “to put into sharper perspective the

reasonableness and fundamental fairness of exercising

jurisdiction . . .” See Pritzker, 42 F.3d at 64. Taken

together, they “may tip the constitutional balance” in close

calls. Id.

Because plaintiff has failed to establish relatedness and

purposeful availment, the Court need not determine whether

exercising personal jurisdiction over Huntsman would be

reasonable. See Phillips Exeter Academy, 196 F.3d at 288.

Having determined that the Court lacks both general and specific

jurisdiction over Huntsman, it will allow Huntsman’s motion to

dismiss all claims asserted against the Texas-based company.

III. Defendants’ Motions to Dismiss for Failure to State a Claim

A. Legal Standard

To survive a motion under Fed. R. Civ. P. 12(b)(6), the

subject pleading must contain sufficient factual matter to state

a claim for relief that is actionable as a matter of law and

“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible if, after accepting as

true all non-conclusory factual allegations, the court can draw

the reasonable inference that the defendant is liable for the

misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d

1, 12 (1st Cir. 2011).

When rendering that determination, a court may not look

beyond the facts alleged in the complaint, documents

incorporated by reference therein and facts susceptible to

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011). A court also may not disregard properly pled

factual allegations even if actual proof of those facts is

improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the

relevant inquiry focuses on the reasonableness of the inference

of liability that the plaintiff is asking the court to draw. Id.

at 13.

Here, to the extent the parties rely on documents that

extend beyond the facts alleged in the complaint or susceptible

to judicial notice and documents incorporated by reference,

those documents are excluded from the Court’s consideration of

the Schiavone defendants’ motion to dismiss for failure to state

a claim.

B. Declaratory Judgment

Under 28 U.S.C. § 2201, jurisdiction in a declaratory

judgment action is proper if there exists an “actual

controversy” between the parties. See Maryland Casualty Co. v.

Pacific Coal & Oil Co., 312 U.S. 270, 272-73 (1941) (“[T]he

facts alleged, under all the circumstances, [must] show that

there is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.”). The Court

has complete discretion in determining “whether and when” to

entertain a claim for a declaratory judgment. See U.S. Liability

Ins. Co. v. Selman, 70 F.3d 684, 693 (1st Cir. 1995).

C. Application

D.S. Brown seeks a judgment against the Schiavone

defendants declaring 1) the parties’ rights and obligations

under the Contract and 2) which party is responsible for the

damages, if any, resulting from the defective delcrete. It

seeks specifically a judgment declaring that D.S. Brown is

neither in breach of the Contract nor responsible for the

defective delcrete.

White-Schiavone contends that plaintiff has failed to state

a claim for declaratory relief because it has asserted no

factual allegations detailing how White-Schiavone improperly

handled, stored or installed the delcrete. To state a claim for

relief, however, D.S. Brown need not plead with certainty how

White-Schiavone caused the alleged damages but merely needs to

plead facts sufficient to state a plausible claim for

declaratory relief. D.S. Brown has done that by alleging that

1) the delcrete caused the expansion joints to fail, 2) White-

Schiavone was responsible for handling, storing and installing

the delcrete and 3) its procedures for doing so contributed to

the failure of some of the expansion joints. Those allegations,

when accepted as true, allow for the plausible inference that

the failure of the expansion joints arose during the handling,

storage or installation of the delcrete, thereby entitling D.S.

Brown to a declaratory judgment.

In any event, plaintiff’s allegations, in most material

respects, are reciprocal to the allegations contained in White-

Schiavone’s complaint which was initially filed in Massachusetts

state court but has since been consolidated with this action.

See Bunge Oils, Inc. v. M & F Marketing Development, LLC, No.

03-11559-GAO, 2005 WL 629489, at *3 (D. Mass. Mar. 15, 2005)

(denying a motion to dismiss a counterclaim for declaratory

judgment because it “in most respects is the mirror image of

count two of [plaintiff’s] amended complaint.”). Not only does

that complaint demonstrate that an actual controversy exists

here but it also renders dismissal of D.S. Brown’s petition for

a declaratory judgment moot because the crossclaims of the

parties are before the Court in any event. Accordingly, the

Court will deny the Schiavone defendants’ motion to dismiss for

failure to state a claim for declaratory relief.

ORDER

For the foregoing reasons, the motion to dismiss filed by

defendant Huntsman International LLC (part, but not all, of

Docket No. 36) is ALLOWED but the motion to dismiss filed by

White-Schiavone, JV, J.F. White Contracting Co. and Schiavone

Construction Co., LLC (Docket No. 22) is DENIED.

All claims asserted against Huntsman are hereby dismissed.

So ordered.

\s\ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated November 5, 2020