Hardwick v. 3M Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEVIN D. HARDWICK,

Plaintiff, Case No. 2:18-cv-1185

JUDGE EDMUND A. SARGUS, JR.

v. Magistrate Judge Elizabeth A. Deavers

3M COMPANY, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant Daikin Industries, Ltd.’s (“Daikin”) Petition

for Permission to Appeal Under 28 U.S.C. § 1292(b) (ECF No. 188), Plaintiff’s Memorandum in

Opposition to the Petition (ECF No. 189), and Daikin’s Reply in Support of the Petition (ECF

No. 194). For the reasons that follow, the Court DENIES Daikin’s Petition. (ECF No. 188.)

I. BACKGROUND

Plaintiff Kevin D. Hardwick filed this action against 3M Company, Daikin, Daikin

America, Inc., E. I. du Pont de Nemours and Company, the Chemours Company, Archroma

Management L.L.C. (“Archroma”), Arkema, Inc., Arkema France, S.A., Solvay Specialty

Polymers, USA, LLC, and AGC Chemicals Americas, Inc. This case focuses on “PFAS,” which

are man-made chemicals described by the United States Environmental Protection Agency as

follows:

Per- and polyfluoroalkyl substances (PFAS) are a group of man-made

chemicals that includes PFOA, PFOS and GenX chemicals. Since the 1940s, PFAS

have been manufactured and used in a variety of industries around the globe,

including in the United States. PFOA and PFOS have been the most extensively

produced and studied of these chemicals. Both are very persistent in the

environment and in the human body. Exposure to certain PFAS can lead to adverse

human health effects.

https://www.epa.gov/pfas/pfas-what-you-need-know-infographic.

Mr. Hardwick alleges that he and others in Ohio and the nation have potentially

dangerous amounts of PFAS in their blood. He brings claims for negligence, battery, conspiracy,

and declaratory judgment. Mr. Hardwick asks for equitable relief in the form of a panel of

scientists to study the effects that the PFAS has in his body and for medical monitoring as part of

that relief.

Defendants moved jointly to dismiss this case in its entirety under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief can be granted and for lack of

subject matter jurisdiction (ECF Nos. 67, 83), and each Defendant moved separately under Rule

12(b)(2) for dismissal based on lack of personal jurisdiction (ECF Nos. 68, 69, 71, 72, 73, 82, 84,

113). The Court issued a decision denying all Defendants’ Motions to Dismiss. See Hardwick v.

3M Co., 2:18-CV-1185, 2019 WL 4757134, at *1 (S.D. Ohio Sept. 30, 2019).

Daikin and another foreign defendant, Archroma, filed a Motion to Reconsider the Denial

of their Motions to Dismiss for Lack of Personal Jurisdiction. (ECF Nos. 131.) Daikin and

Archroma argued that this Court’s conclusion was in violation of “Sixth Circuit precedent dating

back 50 years.” (Defs’ Reply to Mot. for Reconsideration at 1, ECF No. 140.) Daikin and

Archroma contended that instead of relying on precedent, this Court relied upon “stray language

in CompuServe [v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)] or cases like it.” (Defs’ Mot. for

Reconsideration at 8, ECF No. 131.)

After briefing was complete on the reconsideration motion (ECF Nos. 133, 140), the

Sixth Circuit issued Malone v. Stanley Black & Decker, Inc., 965 F.3d 499 (6th Cir. 2020), a

decision in the line of cases that establish the applicable burdens under Federal Rule of Civil

Procedure 12(b)(2). In Malone, as in the instant action, a foreign defendant moved for dismissal

under Rule 12(b)(2), which the district court decided without the benefit of discovery or an

evidentiary hearing, but rather on written submissions alone, including affidavits from the

foreign defendant.

In Malone, district court granted the motion to dismiss. The Sixth Circuit in a published

opinion reversed the district court’s grant of dismissal, clarifying the effect of affidavits on a

plaintiff’s prima facie case when a court decides a motion for dismissal for lack of personal

jurisdiction without the benefit of discovery or an evidentiary hearing, finding them “irrelevant.”

Malone, 965 F.3d at 505–06. As did this Court in its decision denying Daikin’s Motion to

Dismiss for Lack of Personal Jurisdiction, Malone relied on numerous prior decisions by which

it was bound. Id. at 502–06 (citing Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir. 1980); Serras v.

First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989); Theunissen v. Matthews, 935

F.2d 1454, 1459 (6th Cir. 1991); Am. Greetings Corp. v. Cohn, 839 F.2d 1169 (6th Cir. 1988);

Dean v. Motel 6 Operating LP, 134 F.3d 1269, 1272 (6th Cir. 1989); Neogen Corp. v. Neo Gen

Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002); Schneider v. Hardesety, 669 F.3d 693, 697

(6th Cir. 2012); MAG IAS Holdings, Inc. v. Schmuckle, 854 F.3d 894, 899 (6th Cir. 2017)).

This Court included Malone in its decision denying Daikin’s request for reconsideration.

See Hardwick v. 3M Co., 2:18-CV-1185, 2020 WL 4436347 (S.D. Ohio Aug. 3, 2020). In that

decision, the Court specifically states that Malone clarified the standard applicable to Daikin’s

request for dismissal under Rule 12(b)(2). Id. at *4 (“In a published opinion issued last week,

the Sixth Circuit clarified the exact issue the Moving Defendants highlight in their Motion for

Reconsideration.”).

Daikin admits that this Court’s decision followed Sixth Circuit precedent, stating that

Malone “sided with this Court in holding that a plaintiff makes out his prima facie case with

allegations of jurisdiction alone; any affidavits submitted by the defendant are ‘irrelevant.’”

(Petition at 3, ECF No. 188) (quoting Malone, 965 F.3d at 505–06). However, Daikin believes

that the Malone panel misinterpreted Sixth Circuit law, arguing that “Malone changed seventy-

plus years of law on deciding cases in this posture.” (Reply at 8, ECF No. 194.) Daikin has,

therefore, filed a Petition asking this Court to certify for immediate appeal under 28 U.S.C. §

1292 its decisions on personal jurisdiction so the Sixth Circuit is forced to resolve the “intra-

circuit split” Daikin contends Malone caused. (Petition at 7, ECF No. 188)

II.

Section 1292(b) of Title 28 of the United States Code provides:

When a district judge, in making in a civil action an order not otherwise appealable under

this section, shall be of the opinion that such order involves a controlling question of law

as to which there is substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termination of the litigation, he

shall so state in writing in such order.

28 U.S.C. § 1292(b).

As evidenced by the plain text, § 1292(b) certification is proper when “(1) the order

involves a controlling question of law, (2) a substantial ground for difference of opinion exists

regarding the correctness of the decision, and (3) an immediate appeal may materially advance

the ultimate termination of the litigation.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir.

2002). All three elements must be met before certification is appropriate.

An interlocutory appeal under § 1292(b) “should be sparingly applied and is to be used

only in exceptional cases.” In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (quoting

Kraus v. Bd. of Cty. Rd. Comm’rs for Kent Cty., 364 F.2d 919, 922 (6th Cir. 1966)); In re Trump,

874 F.3d 948, 952 (6th Cir. 2017) (same); In re General Motors, LLC, No. 19-0107, 2019 WL

8403402, at *1 (6th Cir. Sept. 25, 2019) (stating appeal under § 1292 is “the exception, granted

only in an extraordinary case.”). For example, an immediate appeal could be warranted in the

rare case in which “there is a circuit split on a question that our own circuit has not answered.”

In re Miedzianowski, 735 F.3d at 384 (emphasis original).

III.

Daikin petitions for certification of an interlocutory appeal of this Court’s denial of its

requests for dismissal for lack of personal jurisdiction. Daikin posits that this Court’s decisions

are “understandable, for that is also what the Sixth Circuit held in Malone v. Stanley Black &

Decker, Inc., 965 F.3d 499 (6th Cir. 2020).” (Petition at 1, ECF No. 188.) Daikin acknowledges

that Malone is directly on point and that “[i]f Malone governs, this Court at this stage may have

jurisdiction over D[aikin].” (Petition at 3, ECF No. 188.) That is, Daikin admits that this

Court’s decisions follow published Sixth Circuit precedent.

Nevertheless, Daikin argues that Malone split with “decades of precedent.” (Petition at 3,

ECF No. 188.) Daikin believes it necessary for this Court to certify an immediate appeal so to

force the Sixth Circuit to resolve what Daikin has concluded is a split in this circuit on the

personal jurisdiction analysis. Daikin frames the issue for the Sixth Circuit as:

Either an affidavit is relevant to a Rule 12(b)(2) motion, as seventy years of

precedent holds, or it is not, as Malone held. That is all the Sixth Circuit would

need to decide.

Id. at 5.

While Daikin makes no mention of it, the Sixth Circuit has had the opportunity to decide

this exact question in the wake of Malone, as counsel for Daikin is aware.

Specifically, on August 4, the day after this Court issued its decision denying Daikin’s

motion to reconsider, counsel for Daikin made an appearance in Malone and filed a Motion to

File Amici Curiae Brief in Support of Petition for Rehearing En Banc. (Malone, Sixth Cir. Case

No. 19-3880, Sixth Cir. ECF No. 42–44, 46.) The same counsel represents Daikin in the present

action.1

In the Motion to File as Amici Curiae, Daikin made the same arguments to the Sixth

Circuit framed in the same way as that it makes in its current Petition before this Court, i.e.,

either an affidavit is relevant to a Rule 12(b)(2) motion, as decades of precedent holds, or it is

not, as Malone held. Daikin presented the facts of this case to the Sixth Circuit in Malone,

arguing:

6. Even more specifically, Daikin Industries and Archroma Management can

speak to a particular case—Hardwick v. 3M Company, No. 2:18-cv-01185 (S.D.

Ohio)—that shows the errors of the [Malone] panel, and the mischief those errors

can cause, in practice.

7. Just yesterday, the district court in Hardwick relied solely2 on the panel

decision in Malone to deny Daikin Industries’ and Archroma Management’s

1 The Court notes that counsel for Archroma also made an appearance and joined the request to

file as amici curiae before the Sixth Circuit. That same counsel represents Archroma in the

present action. And, while Archroma did request reconsideration from this Court on the decision

denying its motion for dismissal under Rule 12(b)(2), Archroma does not join Daikin in its

Petition for immediate appeal that is currently before the Court.

2 It is factually inaccurate to say that this Court’s Opinion and Order relied solely on Malone to

deny the reconsideration motion filed by Daikin and Archroma. This Court relied not only on

Malone’s clarification of the law to deny reconsideration of the denial of personal jurisdiction,

but also on Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012); Kroger Co. v. Malease Foods

Corp., 437 F.3d 506, 510 (6th Cir. 2006); Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d

883, 887 (6th Cir. 2002); CompuServe Inc. v. Patterson, 89 F.3d 1257, 1262-63 (6th Cir. 1996);

Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991); Serras v. First Tennessee Bank

Nat. Ass'n, 875 F.2d 1212, 1213–14 (6th Cir. 1989); Am. Greetings Corp. v. Cohn, 839 F.2d

1164, 1169 (6th Cir. 1988); Weller v. Cromwell Oil Co., 504 F.2d 927, 930 (6th Cir. 1974).

These are the same cases the Court relied upon to deny Daikin’s request for dismissal for lack of

personal jurisdiction before Malone was issued. See Hardwick v. 3M Co., 2:18-CV-1185, 2019

motion. See No. 2:18-cv-01185 (S.D. Ohio, Aug. 3, 2020), ECF No. 166. The

court deemed “irrelevant” uncontroverted affidavits in support of a motion to

dismiss for lack of personal jurisdiction, just as the panel did in Malone. Id. at 9

(emphasis added).

. . . .

9. Because of Malone, therefore, Daikin Industries and Archroma

Management—two foreign companies that swore they directed no suit-related

activities at Ohio—now face merits discovery in Hardwick. And Hardwick is no

small case. It is a putative class action brought on behalf of 99% of all Americans.

10. Daikin Industries and Archroma Management thus have a significant

interest in this appeal—not only because it bears on its Hardwick case, but also

because, if uncorrected, the panel decision will radically reshape personal-

jurisdiction practice in this Circuit, affecting them and other companies in other

cases.

(Daikin Mot. to File Amici Curiae at 2–4, Malone, Sixth Cir. Case No. 19-3880, Sixth Cir. ECF

No. 46) (emphasis in original).

On August 13, 2020, the Sixth Circuit denied the Motion to File Amici Curiae Brief in

Support of Petition for Rehearing En Banc filed by Daikin and Archroma. (Malone, Sixth Cir.

Case No. 19-3880, Sixth Cir. ECF No. 48.)

On August 17, 2020, the Sixth Circuit denied the Petition for a Rehearing En Banc.

(Malone, Sixth Cir. Case No. 19-3880, Sixth Cir. ECF No. 49.) In the Petition for Rehearing En

Banc, the foreign defendant, Rexon, argued that the Malone “Panel’s decision conflicts with

forty-plus years of this court’s precedent on an issue of international and constitutional

importance which arises daily in district courts.” (Id. at 1, 2, 5.) Rexon made the same basic

arguments as Daikin does in its Petition for Interlocutory Appeal that is the subject of this

Opinion and Order, i.e., the Malone “panel was the first to dub the uncontroverted evidence

WL 4757134, at *1 (S.D. Ohio Sept. 30, 2019) (denying motions filed under Rule 12(b)(2) for

lack of personal jurisdiction).

submitted by a defendant ‘irrelevant,’ rather than to follow it and dismiss the defendant [Rexon]

for lack of personal jurisdiction. (Id. at 7) (quoting Malone, 965 F.3d at 505–06). In denying the

request, the Sixth Circuit stated:

The court received a petition for rehearing en banc. The original panel has

reviewed the petition for rehearing and concludes that the issues raised in the

petition were fully considered upon the original submission and decision of the

case.

The petition then was circulated to the full court. No judge has requested a vote

on the suggestion for rehearing en banc. Therefore, the petition is denied.

Id.

On September 1, 2020, two weeks after the Sixth Circuit denied Rexon’s Petition for a

Rehearing En Banc, Daikin filed its Petition to Certify for Interlocutory Appeal in this case.

In its Petition to Certify for Interlocutory Appeal, Daikin insists that this Court should

permit an immediate appeal so that the Sixth Circuit can reconsider an issue that, in the Sixth

Circuit’s view was already “fully considered” in Malone. (Denial of Petition for Rehearing En

Banc, Malone, Sixth Cir. Case No. 19-3880, Sixth Cir. ECF No. 49.) Daikin repeats many of the

arguments it made to the Sixth Circuit in its Motion to File as Amici Curiae and many of the

arguments Rexon made to the Sixth Circuit in its Petition for Rehearing En Banc—both of which

were denied.

The arguments are that Malone caused an “intra-circuit split” that the Sixth Circuit

should immediately resolve, and that “[i]t has been only weeks since Malone issued, and it is

already causing confusion and conflict in this Circuit.” (Petition at 7, ECF No. 188)

Plaintiff responds in opposition to Daikin’s Petition, arguing that, “Malone did not create

an intra-circuit split or confusion within the Sixth Circuit,” and that Daikin does not meet the

standard for immediate appeal under 28 U.S.C. § 1292(b). (Pl. Mem. in Opp. at 9, ECF No.

189.) This Court agrees.

A. Petition for Appeal

As stated above, Daikin must meet all three elements set out in 28 U.S.C. § 1292(b) to

prevail on its request for an interlocutory appeal of this Court’s personal jurisdiction decisions.

The Court begins and ends its analysis with the second requirement – that a substantial ground

for difference of opinion exists regarding the correctness of this Court’s decision. The Sixth

Circuit notes that some district courts utilize a four-pronged test to make this determination,

stating:

District courts in this circuit have interpreted “a substantial ground for difference

of opinion . . . regarding the correctness of the decision” to mean when “(1) the

question is difficult, novel and either a question on which there is little precedent

or one whose correct resolution is not substantially guided by previous decisions;

(2) the question is difficult and of first impression; (3) a difference of opinion exists

within the controlling circuit; or (4) the circuits are split on the question.” City of

Dearborn v. Comcast of Mich. III, Inc., No. 08-10156, 2008 WL 5084203, at *3

(E.D. Mich. Nov. 24, 2008).

In re Miedzianowski, 735 F.3d at 384.

Daikin, therefore, maintains that “[t]his prong of § 1292(b) [difference of opinion] is

established either when ‘a difference of opinion exists within the controlling circuit’ or when

‘the circuits are split on the issue.’” (Petition for Cert. at 5, ECF No. 188) (quoting Brickman

Group, 845 F. Supp. 2d at 866). Daikin asserts that “[b]oth apply here.” Id. at 6. In other

words, Daikin’s assessment of Malone is that it is not only out of line with prior Sixth Circuit

precedent, but that it also reflects the minority opinion in other federal circuits. Daikin

concludes:

Faced with this split in authority on a controlling question of law—indeed a

question that is dispositive of the litigation as to D[aikin]—what is this Court to

do? This is one of those rare instances in which § 1292(b) certification is proper.

(Petition at 2, ECF No. 188.)

As to the first argument, Daikin misinterprets the law upon which it relies regarding what

constitutes a difference of opinion within the controlling circuit, here the Sixth Circuit. “A

substantial ground for a difference of opinion may exist where the Sixth Circuit ‘has not

rendered a decision on the matter,’ and the relevant authorities are ‘susceptible to competing

interpretations.’” Beaudry v. TeleCheck Services, Inc., 3:07-0842, 2008 WL 11429953, at *3

(M.D. Tenn. Oct. 23, 2008) (quoting W. Tennessee Chapter of Associated Builders and

Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015, 1026 (W.D. Tenn. 2000) (finding

that “a substantial disagreement of opinion exists” because “Shaw, Wygant, and Croson are all

susceptible to competing interpretations, and the Sixth Circuit has not rendered a decision on the

matter”). Stated another way, a difference of opinion within the controlling circuit means that

the controlling circuit has no binding authority on the issue and the relevant authorities are

susceptible to competing interpretations.

Thus, the proper inquiry is directed toward whether there is a substantial ground for

difference of opinion regarding the correctness of a district court’s decision in the absence of

binding authority. When there is binding authority, as is the case here, this Court must follow it.

United States v. Yoon, 398 F.3d 802, 806 (6th Cir. 2005) (unless the United States Supreme

Court or the Sixth Circuit sitting en banc overrules or modifies Sixth Circuit precedent, courts

must follow the precedent); Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001) (“The

prior decision [of a Sixth Circuit panel] remains controlling authority unless an inconsistent

decision of the United States Supreme Court requires modification of the decision or this Court

sitting en banc overrules the prior decision.”).

With regard to Daikin’s second argument, it posits that “even if there is no ‘intra-circuit

split or confusion within the Sixth Circuit,’ . . . . [s]ubstantial disagreement is met when ‘the

circuits are split on the issue.’” (Reply at 5, ECF No. 194) (quoting Brickman Group, 845 F.

Supp. 2d at 867). Again, this is a misinterpretation of the law of this circuit. Indeed, the Sixth

Circuit has spoken directly to this issue, stating:

The district court relied on the fact that other circuits [are split on a

particular issue]. However, there is no difference of opinion in this circuit, and we

view the relevant inquiry under the [difference of opinion] prong to be whether

there is a circuit split on a question that our own circuit has not answered.

Where our circuit has answered the question, the district court is bound by

our published authority. And so are we.

Because there is governing precedent in this circuit that settles the issue at

hand, Defendants cannot show the extraordinary circumstances such that an

interlocutory appeal should be granted. See Kraus v. Bd. of Cnty. Rd. Comm'rs for

Kent Cnty., 364 F.2d 919, 922 (6th Cir. 1966) (observing that § 1292(b) “should be

sparingly applied “and” is to be used only in exceptional cases”).

In re Miedzianowski, 735 F.3d 383 at 384.

In the case sub judice, all parties agree that the Sixth Circuit in Malone has spoken

directly to the issue of the appropriate burdens under Rule 12(b)(2). Thus, the inquiry ends

there. This Court “is bound by [the Sixth Circuit’s] published authority.” Id. “Because there is

governing precedent in this circuit that settles the issue at hand, D[aikin] cannot show the

extraordinary circumstances such that an interlocutory appeal should be granted.” Id.

B. Aftermath of Malone

Daikin asserts that Malone “is already causing confusion and conflict in this Circuit.”

(Petition at 7, ECF No. 188); (Reply at 8, ECF No. 194: “Hardwick’s argument that Malone has

not caused and will not create any confusion is not only make-weight, but has been belied by

Malone’s wake.”). Yet, Daikin fails to cite any case where there is confusion and/or conflict

caused by Malone. This is understandable since there are no cases available for that proposition

– indeed the opposite.

All of the district courts that have considered Malone agree with this Court’s assessment

that the decision clarified the law but made no departure from prior precedent. For example, the

Middle District of Tennessee opined:

While these motions were pending, the Sixth Circuit released an opinion

that clarified the respective burdens on the parties with respect to a Rule 12(b)(2)

motion, as well as the options available to—or not available to—district courts

when they consider such motions [that are decided without discovery or an

evidentiary hearing].

Willock v. Hilton Dom. Operating Co., Inc., 474 F. Supp. 3d 938, 945 (M.D. Tenn. 2020)

(emphasis added).

Likewise, all other courts to consider motions to dismiss for lack of subject matter

jurisdiction since the issuance of Malone either explicitly or implicitly agree that the case simply

clarified the respective burdens when the motion is decided without benefit of discovery or an

evidentiary hearing. See Sanders v. Allenbrooke Nursing and Rehab. Ctr., LLC, 2:20-CV-02001,

2020 WL 5651675, at *2 (W.D. Tenn. Sept. 22, 2020); LeafFilter N., LLC v. Home Craft

Builders, Inc., 4:20-CV-1442, 2020 WL 5851124, at *1 (N.D. Ohio Sept. 16, 2020); TCB

Remarketing, LLC v. Metro Auto Auction, LLC, 20-10626, 2020 WL 5548385, at *3 (E.D. Mich.

Sept. 16, 2020); Brown v. Quince Nursing and Rehab. Ctr., LLC, 2:18-CV-2740, 2020 WL

4873670, at *2 (W.D. Tenn. Aug. 19, 2020).

Finally, the Sixth Circuit itself already had the opportunity to reconsider Malone and it

declined to do so, finding that the issue was “fully considered upon the original submission and

decision of the case.” (Denial of Petition for Rehearing En Banc, Malone, Sixth Cir. Case No.

19-3880, Sixth Cir. ECF No. 49.) Indeed, the request was sent to the entire Sixth Circuit, and

“[n]o judge has requested a vote on the suggestion for rehearing en banc” of Malone.

Consequently, there is no evidence that Malone has left confusion in its wake. No district

court has found that Malone did anything other than clarify the respective burdens applicable

under Rule 12(b)(2) motions decided without the benefit of discovery or an evidentiary hearing.

The Court concludes with an observation. The motion addressed in this opinion is

without merit. Although Daiken never asked for one, a conference will be scheduled to craft an

expedited discovery timeline dealing solely with the issue of personal jurisdiction. The

defendant is entitled to contest personal jurisdiction; it is not entitled to distort the caselaw that

applies in this case. Archroma, who joined in the previously filed motion for reconsideration,

may participate in this conference and expedited discovery timeline directed solely at whether

this Court possesses personal jurisdiction over these two foreign defendants.

IV.

For the reasons stated above, the Court DENIES Daikin’s Petition for Permission to

Appeal Under 28 U.S.C. § 1292(b). (ECF No. 188.)

IT IS SO ORDERED.

2/17/2021 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE