# Storey v. James Hardie Building Products, Inc.

> District Court, M.D. Alabama · September 28, 2023

URL: https://www.frixlaw.com/law-library/cases/9988477

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** September 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9988477

## How later opinions describe it (automated extraction)

- holding that the personal jurisdiction over a subsidiary can, in certain circumstances, be “imputed” to a parent company under the Constitution
- noting that the Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. 117 (2014) may undermine a broad application of Meier

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9988477. Public record. Not legal advice.