Storey v. James Hardie Building Products, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ADRIAN STOREY, )

)

Plaintiff, )

)

v. ) CASE NO. 2:22-CV-625-WKW

) [WO]

JAMES HARDIE BUILDING )

INDUSTRIES, P.L.C., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

In his Amended Complaint (Doc. # 37), Plaintiff Adrian Storey alleges

Defendants racially discriminated against him in violation of 42 U.S.C. § 1981.1

Defendants Pete Herringer and James Hardie Building Products, Inc. (JHBP) filed

answers. (Doc. # 38; Doc. # 39.) However, two other business-entity Defendants

bearing the name “James Hardie” did not file answers—rather, they assert that this

court lacks personal jurisdiction over them. Now pending before the court is a

motion to dismiss for lack of personal jurisdiction filed by Defendant James Hardie

Industries, P.L.C. (JHIplc) (Doc. # 15), and a similar motion to dismiss for lack of

personal jurisdiction filed by Defendant James Hardie North America, Inc. (JHNA)

(Doc. # 16). Both motions are filed under Federal Rule of Civil Procedure 12(b)(2).

1 The Amended Complaint also brings state-law tort claims for assault and

After the motions were filed, Plaintiff filed a motion for jurisdictional

discovery, which was granted. (Doc. # 36.) Jurisdictional discovery was conducted,

the parties filed supplemental briefs based on that discovery (Docs. # 45, 47, 48),

and the dispute over personal jurisdiction is ripe for resolution. For the following

reasons, the court lacks personal jurisdiction over Defendants JHIplc and JHNA.

Those Defendants will be dismissed. However, Storey’s case proceeds against

JHBP and Pete Herringer.

I. JURISDICTION AND VENUE

Subject-matter jurisdiction is proper under 28 U.S.C. § 1331, 28 U.S.C.

§ 1343, and 28 U.S.C. § 1367. The parties do not contest venue, but they do contest

personal jurisdiction in the pending motions.

II. STANDARD OF REVIEW

The standard for dismissal for lack of personal jurisdiction under Federal Rule

of Civil Procedure 12(b)(2) is as follows.

Whether there is personal jurisdiction over a defendant is a question of law.

Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th

Cir. 2010). The plaintiff has the initial burden of alleging in the complaint sufficient

facts to make out a prima facie case of personal jurisdiction over a nonresident

defendant. Id. (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th

Cir. 2009)). The plaintiff establishes a prima facie case by presenting enough

evidence to withstand a motion for directed verdict. Meier ex rel. Meier v. Sun Int'l

Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002) (citing Madara v. Hall, 916 F.2d

1510, 1514 (11th Cir. 1990)); see also Snow v. DirecTV, Inc., 450 F.3d 1314, 1317

(11th Cir. 2006).

When the defendant challenges personal jurisdiction by submitting affidavit

evidence, the burden shifts back to the plaintiff to produce evidence supporting

personal jurisdiction. United Techs. Corp., 556 F.3d at 1274 (citing Meier, 288 F.3d

at 1269). In other words, the plaintiff cannot respond merely by relying on the

jurisdictional allegations in its complaint but must substantiate those allegations by

affidavit or other component proof. See Diamond Crystal Brands, 593 F.3d at 1257

(citing Polskie Linie Oceaniczne v. Seasafe Transp. A/S, 795 F.2d 968, 972 (11th

Cir. 1986)).

When the plaintiff's complaint and supporting evidence conflict with the

defendant's evidence, the court must construe all reasonable inferences in favor of

the plaintiff. Id. (citing Meier, 288 F.3d at 1269). Where, as here, evidence has been

submitted following jurisdictional discovery, the court considers the purely legal

question of whether there is enough evidence, when viewed in the light most

favorable to the plaintiff, to withstand a motion for judgment as a matter of law; “the

district court does not weigh evidence or make credibility determinations.”

AcryliCon USA, LLC v. Silikal GmbH, 985 F.3d 1350, 1364–65 (11th Cir. 2021).

III. BACKGROUND

The pertinent jurisdictional facts are about numerous entities that have “James

Hardie” in their names. Three of these “James Hardie” entities are Defendants. One

of the Defendants is James Hardie Building Products, Inc (JHBP), which has a plant

in Prattville, Alabama. JHBP employed Plaintiff Adrian Storey at that

Alabama-based plant and it terminated Storey. Storey alleges that termination was

wrongful, among other allegations of discrimination. (Doc. # 37 at 5–13.) JHBP

does not contest this court’s personal jurisdiction over it.

Two of the other Defendants are James Hardie Industries, P.L.C. (JHIplc) and

James Hardie North America, Inc. (JHNA). Both contest personal jurisdiction. The

organization of these “James Hardie” entities, which involves multiple layers of

holding companies, subsidiaries, and parent companies, are as follows.

Defendant JHIplc, an Irish company, owns 100% of the ordinary shares of

non-party James Hardie International Group Limited (JHIGL), an Irish private

limited company. (Doc. # 46-1 at 4.) JHIGL owns 100% of the ordinary “B” shares

of non-party James Hardie Holdings Limited (JHHL), an Irish private limited

company. JHHL, in turn, owns 100% of the common shares of Defendant JHNA, a

Delaware corporation. Finally, JHNA owns 100% of the common voting stock of

Defendant JHBP, which operates the Alabama-based plant that employed and

terminated Plaintiff Storey. (Doc. # 46-1 at 4.) Essentially, Defendant JHNA owns

100% of Defendant JHBP, and Defendant JHIplc owns 100% of JHNA, meaning,

JHIplc functionally owns 100% of JHBP.

IV. DISCUSSION

The sole issue before the court is whether it has personal jurisdiction over

Defendants JHIplc and JHNA, 2 the entities which allegedly control Defendant JHBP

(an entity over which the court clearly has personal jurisdiction). Put differently,

this case deals with when personal jurisdiction over a subsidiary can be imputed to

a parent company.

Personal jurisdiction generally entails a two-step inquiry. Sloss Indus. Corp.

v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007). First, a federal court must have

personal jurisdiction as authorized by the law of the state in which it sits, here,

Alabama. Meier, 288 F.3d at 1269. And second, it must have personal jurisdiction

to the extent allowed under the Due Process Clause of the Fourteenth Amendment.

In this case, the two inquiries merge, because Alabama's long-arm statute permits

the exercise of personal jurisdiction to the fullest extent constitutionally permissible.

See Ala. R. Civ. P. 4.2(b); Sieber v. Campbell, 810 So.2d 641, 644 (Ala. 2001).

Thus, the court only analyzes whether the exercise of personal jurisdiction satisfies

2 The case stylization and Defendants refer to Defendant “James Hardie Building

Industries, P.L.C.” or “JHIplc.” Plaintiff Storey refers to this Defendant as “James Hardie

Industries” or “JHI.” It is unclear why there is a difference, but the court adopts the name in the

case stylization and refers to what plaintiff coins “JHI” as “JHIplc.”

the requirements of due process. Olivier v. Merritt Dredging Co., 979 F.2d 827, 830

(11th Cir. 1992).

The due process requirements of the Fourteenth Amendment require that a

non-resident defendant (1) have “certain minimum contacts” with the forum so that

(2) the exercise of jurisdiction does not offend “traditional notions of fair play and

substantial justice.” Meier, 288 F.3d at 1274 (citing Int’l Shoe Co. v. Washington,

326 U.S. 310, 316 (1945)). “This two-part test embodies the controlling due process

principle that a defendant must have ‘fair warning’ that a particular activity may

subject it to the jurisdiction of a foreign sovereign.” Vermeulen v. Renault, U.S.A.,

Inc., 985 F.2d 1534, 1545 (11th Cir. 1993).

Two types of minimum contacts can form the basis for personal jurisdiction:

general and specific. See Stubbs v. Wyndham Nassau Resort & Crystal Palace

Casino, 447 F.3d 1357, 1360 n. 3 (11th Cir. 2006). General jurisdiction may arise

from a party's contacts with the forum State that are unrelated to the litigation.

Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n. 8–9 (1984). To

establish general personal jurisdiction, the defendant's activities in the State must

have been sufficiently “continuous and systematic” so as to render it “essentially at

home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011). In contrast, “[s]pecific jurisdiction arises out of a party's

activities in the forum that are related to the cause of action alleged in the complaint.”

Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); see also

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–75 (1985). Under either form

of contact, each defendant’s contacts with the forum State must be assessed

individually. But here, Storey only alleges specific personal jurisdiction; he “does

not allege general jurisdiction.”3 (Doc. # 45 at 3, n.6.)

Because specific jurisdiction arises out of a party’s activities in the forum that

are related to the cause of action, the due process requirements are less “stringent

than for [general] personal jurisdiction.” Consol. Dev. Corp., 216 F.3d at 1292. In

a case involving specific jurisdiction, a defendant's contacts with the forum state

must satisfy three criteria: they “must be related to the plaintiff's cause of action or

have given rise to it;” they must involve “some act by which the defendant

purposefully avails itself of the privilege of conducting activities within the forum;”

and they “must be such that the defendant should reasonably anticipate being haled

into court there.” Sloss, 488 F.3d at 925. Here, it is undisputed that the court has

specific and general jurisdiction over JHBP. JHBP has an Alabama-based plant that

employed plaintiff in Prattville, Alabama. (Doc. # 39 at ¶19–21.) JHBP allegedly

wrongfully terminated plaintiff. That is sufficient contact with this jurisdiction for

3 Notably, plaintiffs are not the masters of whether they assert general or specific

jurisdiction. A plaintiff may argue for specific jurisdiction, but if the facts do not bear out that the

defendants’ activities in the forum state are related to the specific cause of action brought by

plaintiff, then general personal jurisdiction is the appropriate analytical anchor. See Consol. Dev.

Corp., 216 F.3d at 1292. In any event, both specific and general jurisdiction clearly exist here as

to JHBP.

both specific and general personal jurisdiction and Defendant JHBP does not assert

that it is not; rather, JHBP filed an answer.

The Defendants that have moved under Rule 12(b)(2)—that is, JHIplc and

JHNA—are a different matter. Neither of these entities, on their own, conduct

business in Alabama. They do not have plants in Alabama or any employees that

reside in Alabama. They do not send product to Alabama. Absent JHBP and using

a typical jurisdictional analysis, specific or general, there would not be jurisdiction

over these entities based on their activities alone. But that is not the theory Storey

asserts. Rather, Storey asserts that the specific jurisdiction the court has over JHBP

(which operates a plant in Alabama and terminated Storey) can be imputed to JHIplc

and JHNA. Meier, 288 F.3d at 1274 (holding that the personal jurisdiction over a

subsidiary can, in certain circumstances, be “imputed” to a parent company under

the Constitution).

Specifically, Storey argues that imputed personal jurisdiction exists over

JHIplc and JHNA under an “agency” theory of jurisdiction.4 That is, Storey argues

that there is personal jurisdiction over JHIplc and JHNA because there is jurisdiction

over JHBP, which is merely “an agent of both [JHIplc and JHNA] and that [a]gency

4 Agency relationships, the Supreme Court has noted, “may be relevant to the existence of

specific jurisdiction,” but not general jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 135 n.13

(2014). Specific jurisdiction is the realm of agency relationships because “[o]ne may be an agent

for some business purposes and not others so that the fact that one may be an agent for one purpose

does not make him or her an agent for every purpose . . . . [F]or example, [a subsidiary] might be

its parent’s agent for claims arising in the place where the subsidiary operates, yet not its agent

regarding claims arising elsewhere.” Id. at 135 (citing 2A C.J.S., Agency § 43, p.367 (2013)).

subjects [them] to Personal Jurisdiction.” (Doc. # 45 at 9.) Defendants argue that

such an “agency” theory of jurisdiction is “unfounded” and that, under any theory,

the evidence from jurisdictional discovery does not support specific personal

jurisdiction. (Doc. # 47 at 1.)

In support of his personal jurisdiction argument, Storey relies exclusively on

one case from the Eleventh Circuit: Meier ex rel. Meir v. Sun Int’l Hotels, Ltd., 288

F.3d 1264, 1272 (11th Cir. 2002); see also (Doc. # 48 at 8 (“Meier . . . is the only

case needed to support the Plaintiff’s argument.”).) In Meier, the Eleventh Circuit

held:

Generally, a foreign parent corporation is not subject to the

jurisdiction of a forum state merely because a subsidiary is doing

business there. “On the other hand, if the subsidiary is merely an agent

through which the parent company conducts business in a particular

jurisdiction or its separate corporate status is formal only and without

any semblance of individual identity, then the subsidiary's business will

be viewed as that of the parent and the latter will be said to be doing

business in the jurisdiction through the subsidiary for purposes of

asserting personal jurisdiction.” Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1069.4 (3d ed. 2002) (citations

omitted). In order to establish jurisdiction over the Sun Defendants,

therefore, Plaintiff must persuade the court that the Florida Subsidiaries

are the entities through which the Sun Defendants conduct substantial

business activity in Florida.

288 F.3d at 1272 (citations omitted); see also Stubbs v. Wyndham Nassau

Resort & Crystal Palace Casino, 447 F.3d 1357, 1361 (11th Cir. 2006).

Using this language from Meier, Storey argues that JHBP is “merely an agent

through which [JHIplc and JHNA] conducts business in a particular jurisdiction”

and its “separate corporate status is formal only.” Id. Meier’s agency idea of

jurisdiction has also been referred to by the Eleventh Circuit as “jurisdictional veil

piercing.” United States ex rel. Bibby v. Mortg. Invs. Corp., 987 F.3d 1340, 1355

(11th Cir. 2021). Based on Meier, the court agrees with Storey that the relevant legal

test announced by the Eleventh Circuit is whether JHBP is the entity “through which

[JHNA and JHIplc] conduct substantial business activity in Alabama.”5 288 F.3d at

1272. Or, rather, as the Eleventh Circuit has clarified: “[T]he rule from Meier is that

where the apparent forum contacts of one actor are really the forum contacts of

another, it is consistent with due process to impute those contacts for personal

jurisdiction purposes.” Bibby, 987 F.3d at 1355 (interpreting Meier and explaining

why it is still good law).

So, are the forum contacts of JHBP really the forum contacts of JHNA and/or

JHIplc? If so, JHBP’s corporate veil is pierced and its forum contacts—which are

sufficient to establish specific jurisdiction—are imputed to JHNA and/or JHIplc.

Storey argues that JHBP’s forum contacts are really JHNA and JHIplc’s

because they “essentially [have] total control over [JHBP’s] Prattville mill which is

the employer at issue in this case.” (Doc. # 45 at 2.) In support, Storey references

5 The court recognizes that the breadth of the Meier decision has been under some scrutiny,

see Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1387 n.1 (S.D. Fla. 2014) (noting that

the Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. 117 (2014) may undermine a

broad application of Meier), but, as the Eleventh Circuit recently noted, post-Daimler and Walden,

“Meier is binding here.” United States ex rel. Bibby v. Mortg. Invs. Corp., 987 F.3d 1340, 1355

(11th Cir. 2021), cert. denied sub nom. Mortg. Invs. Corp. v. United States ex rel. Bibby, 141 S.

Ct. 2632 (2021).

six facts. First, the companies all bear the “James Hardie” label. Second, JHNA

owns 100% of JHBP, and JHIplc, in turn, owns 100% of JHNA, meaning JHIplc is

the super parent that actually owns JHBP. Third, JHIplc’s Executive Director is the

President of JHBP. Fourth, JHBP’s website advertises for JHIplc and solicits

investments, not for itself, but for JHIplc’s stock. Fifth, JHIplc’s annual report,

which was certified to the Securities Exchange Commission and is housed on

JHBP’s website, repeatedly references the Prattville Mill, the subject of this suit.

And sixth, JHIplc is not a hedge fund or holding company that maintains a diverse

set of stocks; it owns companies that are only related to James Hardie branded

services, all of which engage in the same core business as JHBP.

All of this seemingly leads to the commonsense conclusion that JHBP is, at

least in some respects, JHIplc by another name. “If it looks like a duck, swims like

a duck, and quacks like a duck, then it probably is a duck.” But commonsense is

sometimes foreign to complex law, especially when it comes to jurisdiction and the

morass of legal fiction that is corporate entity-dom. The issue here is that, on the

one hand, Storey presents insufficient evidence to establish that JHBP’s parent

companies exercise such complete control over it so as to render them one-and-the-

same for purposes of imputing general (all-purpose) jurisdiction, and, on the other

hand, Storey presents sufficient evidence to establish that there is an agency

relationship, meaning that, under certain circumstances, the court’s specific

jurisdiction over the agent can be imputed to the parent companies. In this case,

however, JHBP’s agency relationship does not confer specific jurisdiction to JHNA

or JHIplc.

Because establishing personal jurisdiction through an agency relationship

sounds in specific jurisdiction, see Daimler, 571 U.S. at 135, the court is tasked with

determining not whether JHBP has generally been—or is capable of being—an agent

of its parent companies, but with whether JHBP was an agent in relation to the forum

contacts that establish specific jurisdiction. Here, those contacts were the

employment, harassment, and termination of Storey at JHBP’s Prattville mill. It is

clear to the court that JHNA and JHIplc could have ordered JHBP to terminate

Storey from the Prattville mill. But there is nothing in the record to indicate that

JHNA or JHIplc actually exerted any control over Storey’s employment. “Agencies

. . . come in many sizes and shapes.” Id. A subsidiary may be an agent for one

purpose, but not an agent for another purpose. Id. Here, there is no evidence that

JHBP was acting as its parent companies’ agent in its employment relationship with

Storey. Accordingly, the court cannot impute JHBP’s specific personal-jurisdiction

forum contacts to JHIplc, a foreign corporation, or JHNA. See Bibby, 987 F.3d at

1355 (“[W]hen a defendant exerts a high degree of control over an entity, the

contacts created by the entity are, in reality, created by the defendant.” (emphasis

added)). Similarly, the record does not reflect that JHNA or JHIplc exercise such

excessive control over JHBP that they should be considered one-and-the-same or

alter egos so as to render JHNA or JHIplc “essentially at home” wherever JHBP is

“essentially at home” for purposes of imputing general jurisdiction (which, again,

Storey does not assert). Daimler, 571 U.S. at 119.

For the reasons stated above, Defendant JHIplc and JHNA’s motions to

dismiss for lack of personal jurisdiction will be granted and the claims against them

dismissed under Federal Rule of Civil Procedure 12(b)(2).6

V. CONCLUSION

Accordingly, it is ORDERED that:

(1) Defendant James Hardie Building Industries, P.L.C.’s motion to dismiss for

lack of personal jurisdiction (Doc. # 15) is GRANTED.

(2) Defendant James Hardie North America, Inc.’s motion to dismiss for lack of

personal jurisdiction (Doc. # 16) is GRANTED.

(3) Defendants James Hardie Building Industries, P.L.C. and James Hardie

North America, Inc. are DISMISSED without prejudice.

This case is not closed. It proceeds against Defendants James Hardie Building

Products, Inc., and Peter Herringer.

DONE this 28th day of September, 2023.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE

6 Notably, Plaintiff opens his briefing in support of personal jurisdiction by stating that the

Defendants failed to “produce a single document” during jurisdictional discovery; however,

Plaintiff did not assert what facts Defendants failed to produce or how any such facts may alter the

analysis. See (Doc. # 45.) To the extent that such facts come out during regular discovery against

the surviving Defendants, Plaintiff may seek leave to file an amended complaint.