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

United States District Court

District of Massachusetts

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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 a materials supplier, The D.S. Brown Company (“D.S.

Brown” or “plaintiff”), delivered to the general contractor (or

its agent), White-Schiavone, J.V. (“White-Schiavone”), a certain

kind of concrete that was purportedly defective. In both its

second amended complaint and third-party complaint, D.S. Brown

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 against

Huntsman International LLC (“Huntsman”), a manufacturer of a

component of the concrete, (collectively “the defendants”) to

determine the contractual responsibilities of each party.

In a Memorandum and Order entered on November 5, 2020 (“the

November M&O”), this Court, inter alia, dismissed from the SAC

all claims against Huntsman for lack of personal jurisdiction.

Now pending before the Court are D.S. Brown’s motion for

reconsideration and Huntsman’s motion to dismiss the third-party

complaint for lack of personal jurisdiction. For the reasons

that follow, D.S. Brown’s motion will be denied and Huntsman’s

motion will be allowed.

III. Background

This Court has set forth the convoluted factual and

procedural history of this case in greater detail in the Court’s

prior Memoranda and Orders, see Docket Nos. 88 & 90, focusing

here on the details relevant to the pending motions.

A. The Parties and Factual History

D.S. Brown 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”) and became the general contractor 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.

As part of the Project, White-Schiavone entered into 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 in the I-91 viaduct bridge

deck.

Plaintiff asserts that it did not itself manufacture the

delcrete but instead purchased it from Huntsman pursuant to

independent Purchase Orders. One Purchase Order in October,

2016, directed Huntsman to deliver a shipment of delcrete

directly to White-Schiavone in Massachusetts. All other

Purchase Orders, which were executed in May, July, and August,

2017 (“the 2017 shipments”), directed Huntsman to ship the

delcrete to D.S. Brown in Ohio, after which plaintiff forwarded

the materials to White-Schiavone in Massachusetts.

By mid-2017, White-Schiavone had discarded the 2016

shipment of delcrete (for which White-Schiavone is not seeking

reimbursement), and had received new shipments from D.S. Brown

that it was using 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 but D.S. Brown submits

that they were caused by either White-Schiavone’s storage,

handling or installation procedures or Huntsman’s manufacturing

process.

In or about December, 2017, D.S. Brown 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. D.S. Brown asserts

that White-Schiavone subsequently threatened to file suit

against it for supplying defective delcrete, causing D.S. Brown

to initiate an action for declaratory judgment.

B. The Procedural History

In July, 2019, plaintiff commenced this action in the

Western Division of this District Court, and subsequently

amended its complaint twice. In the second amended complaint

(“SAC”) plaintiff incorporates eight counts. Count I seeks a

declaratory judgment to determine the contractual

responsibilities of each party in connection with the

purportedly defective delcrete. The remaining seven counts were

brought against Huntsman, asserting that it supplied plaintiff

with defective delcrete and, as a result, breached its implied

warranty of merchantability and its contract, and was negligent,

among other things.

Thereafter, all of the defendants filed motions to dismiss

the SAC in its entirety. White-Schiavone and its joint venture

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

while Huntsman moved to dismiss it for lack of subject matter

jurisdiction, lack of personal jurisdiction and failure to state

a claim. 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).

In November, 2019, White-Schiavone filed a complaint

against D.S. Brown in the Massachusetts Superior Court, seeking

to hold D.S. Brown liable for damages resulting from the

defective 2017 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 that case to the Western Division of

this Court and filed a counterclaim and third-party complaint

against the Schiavone defendants and Huntsman, asserting claims

parallel to those in the SAC. A few weeks after the removal,

D.S. Brown moved to consolidate the two cases and White-

Schiavone simultaneously filed a motion to transfer both of them

to the Eastern Division of the District of Massachusetts. The

motion to transfer was allowed in April, 2020, bringing both

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

was subsequently allowed in a Memorandum and Order entered by

this Court on October 29, 2020 (“the October M&O”).

Also in the October M&O, this Court denied the motion of

defendant Huntsman to dismiss for lack of subject matter

jurisdiction, finding D.S. Brown diverse from all of the

defendants in this case. A week later, this Court entered

another Memorandum and Order (“the November M&O”) in which it

allowed Huntsman’s motion to dismiss for lack of personal

jurisdiction but denied the Schiavone defendants’ motion to

dismiss for failure to state a claim. In dismissing Huntsman

from the SAC, this Court reasoned that none of the underlying

claims related to any contacts Huntsman had with Massachusetts,

nor did the factual allegations indicate that Huntsman

purposefully availed itself of conducting business in the

Commonwealth.

VI. Discussion

A. This Court Lacks Personal Jurisdiction Over Huntsman

The two motions pending before this Court compel it to

reconsider its prior determination that personal jurisdiction

over defendant Huntsman is lacking in this case. In particular,

Huntsman has moved to dismiss D.S. Brown’s third-party complaint

for lack of personal jurisdiction and D.S. Brown has moved for

reconsideration of the Court’s November M&O to the extent it

dismissed Huntsman for lack of personal jurisdiction.

Huntsman submits that D.S. Brown still fails to demonstrate

that this Court has jurisdiction over the Texas-based company.

Huntsman contends that there is no evidence in the record that

it has had any relevant contacts with Massachusetts and that its

motion to dismiss is “essentially a formality” because the same

jurisdictional deficiencies are present in D.S. Brown’s third-

party complaint as in the SAC.

D.S. Brown responds that its allegation in the third-party

complaint that Huntsman sent the 2016 shipment of delcrete

directly to Massachusetts establishes specific jurisdiction over

that defendant. It adds that reconsideration of this Court’s

prior decision is warranted because “new evidence” demonstrates

that Huntsman knew its product would be utilized in

Massachusetts and that the invoices of the limited liability

company directed payment to an address located in Boston.

Huntsman rejoins that D.S. Brown’s reliance on the 2016

shipment of delcrete is misplaced because, as this Court already

found, that shipment was unrelated to the pending dispute.

White-Schiavone does not seek recovery of any cost associated

with delcrete sent prior to May, 2017, thereby rendering the

2016 shipment irrelevant.

B. Legal Standard

The Court has “substantial discretion and broad authority

to grant or deny” a motion for reconsideration. Ruiz Rivera v.

Pfizer Pharm., LLC, 521 F.3d 76, 81 (1st Cir. 2008). A motion

for reconsideration will be allowed if the movant shows a

manifest error of law, newly discovered evidence or that the

Court has made an error “not of reasoning but apprehension.” Id.

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, when the Court

decides a motion to dismiss for lack of personal jurisdiction

without first holding an evidentiary hearing, it 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) (“In order to make a prima facie showing of

jurisdiction, the plaintiff ordinarily cannot rest upon the

pleadings but is obliged to adduce evidence of specific facts.”

(internal quotation marks omitted)).

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 permitted by

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

2) coheres with the Due Process Clause of the Fourteenth

Amendment to the United States Constitution (“Fourteenth

Amendment”) by showing that each defendant has “minimum

contacts” with Massachusetts. Daynard v. Ness, Motley, Loadholt,

Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002).

The requirements of M.G.L. c. 223A, § 3 are substantially

similar to (although potentially more restrictive than) those

imposed by the Fourteenth Amendment. See Copia Commc'ns, LLC v.

AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016) (noting that

“[r]ecently, however, we have suggested that Massachusetts's

long-arm statute might impose more restrictive limits on the

exercise of personal jurisdiction than does the Constitution”).

Because no party has invoked the long-arm statute, the Court

will proceed directly to the constitutional analysis. See id.

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 each defendant

has “minimum contacts” with Massachusetts such that the exercise

of personal jurisdiction over that defendant 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)).

Despite the “new evidence” proffered by D.S. Brown, its

argument that this Court has general jurisdiction over Huntsman

remains unavailing. That evidence is insufficient to show that

Huntsman, a Texas-based company, has engaged in such continuous

or systematic activity in Massachusetts that it can be deemed

“essentially at home” in the Commonwealth. D.S. Brown’s

suggestion that Huntsman is registered to do business in

Massachusetts and maintains a P.O. Box in Boston falls short of

the “exceptional” circumstances warranting the exercise of this

Court’s general jurisdiction. See Daimler AG, 571 U.S. at 139

n.19 (“It is one thing to hold a corporation answerable for

operations in the forum State, quite another to expose it to

suit on claims having no connection whatever to the forum State”

(internal citation omitted)).

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 those 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 questions 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 will be improper if the “defendant’s forum-state

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

Having reviewed the submissions of the parties, this Court

finds once again that the claims underlying this litigation do

not relate to any contacts Huntsman has had with Massachusetts.

Indeed, the only proffered contact between Huntsman, the

delcrete and Massachusetts is the 2016 shipment which, as this

Court explained previously in the November M&O, may pertain to

the general relationship between the parties but is irrelevant

to this litigation because White-Schiavone is not seeking

recovery of damages associated with it. See Sawtelle, 70 F.3d at

1389 (“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.”).

With respect to the disputed 2017 shipments, moreover,

Huntsman presumably manufactured the delcrete in Texas or in

another state outside of the Commonwealth and, then, shipped it

from that state directly to D.S. Brown in Ohio pursuant to

independent Purchase Orders. Thereafter, D.S. Brown forwarded

the product to Massachusetts, apparently without any involvement

of Huntsman. Accordingly, Huntsman’s manufacture and sale of

the purportedly defective delcrete implicates Texas and Ohio but

not Massachusetts.

b. Purposeful Availment

The Court further concludes that D.S. Brown has, again,

failed to establish the second jurisdictional factor of

“purposeful availment by defendants of the privilege of

conducting business in [Massachusetts],” making any contacts

with it foreseeable and voluntary. Sawtelle v. Farrell, 70 F.3d

1381, 1389, 1393 (1st Cir. 1995); Astro-Med, Inc., 591 F.3d at

10. Purposeful avialment 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).

None of the new evidence proffered by D.S. Brown convinces

this Court that, by manufacturing delcrete outside the

Commonwealth, executing purchase orders from an Ohio corporation

and shipping the product to Ohio, Huntsman purposefully availed

itself of the privileges of conducting business in

Massachusetts. That Huntsman knew the delcrete was to be

shipped to Massachusetts and that it directed payment of its

invoices to a Boston, Massachusetts P.O. Box does not change the

fact that its product ended up in the Commonwealth only as the

result of the 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.”); see also Cambridge Literary

Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg,

295 F.3d 59, 65 (1st Cir. 2002) (“[T]he due process clause

arguably requires more than a literal but for link between the

Massachusetts contact [of defendant] and the asserted cause of

action.” (internal quotation marks omitted)).

Despite the concerted effort of D.S. Brown to convince this

Court that it has personal jurisdiction over Huntsman,

plaintiff’s argument falls short. This Court will, therefore,

dismiss Huntsman from this consolidated action.

A. Jurisdictional Discovery

In its broad discretion, the Court is permitted to allow

jurisdictional discovery where a plaintiff has made a “colorable

claim” of jurisdiction and has been “diligent in preserving

[its] rights to be entitled to jurisdictional discovery”. See

Swiss II, 274 F.3d at 625–27. Such diligence requires a

plaintiff to “present facts to the court which show why

jurisdiction would be found if discovery were permitted”. Id. at

626. Here, plaintiff has made no such presentation during this

extensive litigation. For that reason, jurisdictional discovery

is unwarranted.

ORDER

For the foregoing reasons, the motion to dismiss filed by

defendant Huntsman International LLC (Docket No. 92) is ALLOWED

and The D.S. Brown Company’s motion for reconsideration (Docket

NO. 96) is DENIED. The claims against Huntsman International

LLC are hereby DISMISSED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated April 28, 2021