United States v. Bliss

108 F.R.D. 127, 23 ERC 1638, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20368, 23 ERC (BNA) 1638, 1985 U.S. Dist. LEXIS 14246
CourtDistrict Court, E.D. Missouri
DecidedNovember 1, 1985
DocketNo. 84-200C(1)
StatusPublished
Cited by21 cases

This text of 108 F.R.D. 127 (United States v. Bliss) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bliss, 108 F.R.D. 127, 23 ERC 1638, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20368, 23 ERC (BNA) 1638, 1985 U.S. Dist. LEXIS 14246 (E.D. Mo. 1985).

Opinion

MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendants’ motion to dismiss for lack of jurisdiction over the person. In this action, the United States sues for both injunctive relief and for recovery of clean-up costs under §§ 106 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. [129]*129§§ 9606 and 9607, and § 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, in connection with six sites within the Eastern District of Missouri. As the United States alleges, these sites are contaminated by the hazardous substances 2, 3, 7, 8 — tetracheorodibenzo-p-dioxin (Dioxin) and trichlorophenol (TCP) and threaten public health and the environment.

The United States alleges that between December, 1969 and January, 1972, the Syntex defendants along with defendants North Eastern Pharmaceutical and Chemical Company, Inc. (NEPACCO), Edwin Michaels and John Lee engaged in a joint venture to manufacture hexachlorophene, whose by-products include dioxin and TCP. NEPACCO used the facilities of HoffmanTaff, Inc., a Missouri corporation. As the Government further alleges, defendants arranged for the transportation and disposal of these by-products to the various sites in Missouri which constitute the bases of this litigation. For an extensive discussion of the manufacturing activities of NEPACCO, see United States v. Northeastern Pharmaceutical and Chemical Company, Inc., 579 F.Supp. 823 (W.D.Mo.1984).

Defendants Syntex Corporation (Syntex), Syntex Laboratories, Inc. (New Labs) and Syntex (U.S.A.), Inc. (Syntex (U.S.A.)), all members of the Syntex corporate family, move pursuant to Fed.R.Civ.P. 12(b)(2) to dismiss plaintiff’s second amended complaint. Defendants allege they lack the requisite contacts with this forum, are not currently doing business in Missouri, and are not subject to service of process under federal statute. The United States argues that jurisdiction is proper under the Missouri long-arm and general service statutes and under nationwide service of process authorized by CERCLA.

I. SERVICE UNDER MISSOURI STATUTE

Rule 4(f) provides in pertinent part:

All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state.

Assuming that federal law does not provide a method of service under CERCLA, defendants must be served “under the circumstances and in the manner” prescribed by Missouri law. Fed.R.Civ.P. 4(e); see, DeMelo v. Toche, Inc., 711 F.2d 1260, 1266 (5th Cir.1983); see also, 4 C. Wright & A. Miller, Federal Practice and Procedure § 1075 (1969). Defendants are foreign corporations. Syntex is a corporation organized under the laws of Panama. Syntex (U.S.A.) and Syntex Laboratories are Delaware corporations. Missouri law provides for service upon foreign corporations under its long-arm and general service statutes. As the United States alleges, the Syntex defendants were properly served under either statute.

A. Missouri’s Long-Arm Statute

In passing on a motion to dismiss for lack of jurisdiction over a non-resident, this Court must engage in a two-step inquiry: first, whether defendant committed one of the acts enumerated in the long-arm statute; and second, whether the exercise of personal jurisdiction over defendant violates the due process clause of the fourteenth amendment. The Land-O-Nod Company v. Bassett Furniture Industries, Inc., 708 F.2d 1338 (8th Cir.1983); Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982). Plaintiff, the party that is seeking to invoke federal jurisdiction, has the burden of establishing that jurisdiction exists, and this burden may not be shifted to the party challenging the jurisdiction. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1982). While the facts are viewed in the light most favorable to the plaintiffs, “there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist....” Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211,1215 (8th Cir.1977) (citations omitted). See also, Data Disc, Inc. v. Systems Tech[130]*130nology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977) (plaintiff need only make a prima facie showing of jurisdictional facts through submission of affidavits plus discovery materials); Greycas, Inc. v. Anderson, 584 F.Supp. 894, 895-96 (E.D. Mo.1984); 4 Wright & Miller, Federal Practice and Procedure: Civil § 1068 at 250 (1969).

Missouri’s Long-Arm statute provides: 1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:

(1) The transaction of any business within this state;'
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state;
(4) The' ownership, use, or possession of any real estate situated in this state;
(5) The contracting to insure any person, property or risk located within this state at the time of contracting.
(6) Engaging in an act of sexual intercourse within this state with the mother of a child on or near the probable period of conception of that child.

2.....

3. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

Mo.Rev.Stat. § 506.500 (Supp.1984).

The due process clause of the fourteenth amendment places limits upon the power of a court to exercise personal jurisdiction over a non-resident defendant. The due process clause requires that a defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Land-O-Nod, 708 F.2d at 1340. Accord World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980);

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Bluebook (online)
108 F.R.D. 127, 23 ERC 1638, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20368, 23 ERC (BNA) 1638, 1985 U.S. Dist. LEXIS 14246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bliss-moed-1985.