FILED: NEW YORK COUNTY CLERK 08/24/ :20 PM INDEX NO /2017 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 08/24/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DENNIS ROBINS and CHRISTINE ROBINS Index No.: Plaintiffs, -against- AFFIRMATION ALFA LAVAL, INC., et al. Defendants x CHRISTOPHER P. HANNAN, an attorney licensed to practice law in the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am a partner of Kelley Jasons McGowan Spinelli Hanna & Reber, LLP, attorneys for defendant Alfa Laval Inc. ("Alfa Laval") in the above-captioned matter. As such, I have personal knowledge of all facts contained in the within Affirmation. 2. This Affirmation is respectfully submitted in support of Alfa Laval's motion to dismiss Plaintiffs' complaint and all cross-claims, pursuant to C.P.L.R. 3211(a)(8) on the grounds that Alfa Laval is not subject to personal jurisdiction in the State of New York in this matter. PR_ELIMINARY STATEMENT 3. With respect to Alfa Laval specifically, Plaintiffs allege that Mr. Robins-a citizen of the United Kingdom who has never lived in New York-was exposed to asbestos from equipment that he encountered while working on foreign ships that were constructed in shipyards outside of the United States. Alfa Laval Inc. presents evidence herewith that it did not manufacture or sell the equipment that Plaintiffs attribute to it in this case. Moreover, even setting that dispositive fact aside, Alfa Laval demonstrates that Plaintiffs cannot prove that their 3 1 of 23

2 claims arise from any contacts that Alfa Laval has ever had with the State of New York. For these reasons, Plaintiffs cannot prove that Alfa Laval is subject to personal jurisdiction in New York for purposes of their claims, and thus, Alfa Laval should be dismissed from this case. STATEMENT OF THE FACTS 4. This action was commenced via the filing of a Summons & Complaint in the Supreme Court of New York, County of New York, on or about April 21, At the time of the commencement of this action, Alfa Laval was not a party defendant sued in Plaintiffs' Summons and Complaint, but was subsequently added as a party defendant via the filing of Plaintiffs' Amended Summons and Complaint on or about May 16, In total, Plaintiffs have filed three (3) Amended Summons and Complaints in this matter. True and accurate copies of all of Plaintiffs' pleadings are collectively attached hereto as Exhibit "A". 5. On or about June 1, 2017, co-defendants, CBS Corporation, Foster Wheeler, LLC and General Electric Company removed this action to federal court in the Southern District of New York. 6. On or about July 6, 2017, Judge Vernon S. Broderick of the Southern District of New York remanded this matter to the Supreme Court of New York, New York County. 7. On or about February 28, 2018, Alfa Laval interposed its Answer asserting an affirmative defense that this Court lacks personal jurisdiction over Alfa Laval. A true and accurate copy of Alfa Laval's Answer is attached hereto as Exhibit "B". 8. As Plaintiffs admit in their Summons and Complaint, Alfa Laval is a New Jersey corporation with a principal place of business in Virginia. See, Ex. A at 16; See also, the Affidavit of John C. Atanasio, former President and CEO of Alfa Laval, attached hereto as Exhibit "C", at of 23

3 9. While Alfa Laval registered as a foreign business corporation with the New York Department of State on June 2, 2000, Alfa Laval is not, and never has been, a New York Corporation. Id., at Plaintiffs' allegations in this lawsuit are such that Plaintiff Dennis Robins was diagnosed with mesothelioma due to his exposure to asbestos during his lifetime. See, Ex. A at Mr. Robins and his wife, Christine Robins, are citizens of the United Kingdom of Great Britain and Northern Island, and currently reside in Wales. Id., at Mr. Robins participated in a discovery deposition over the course of sixteen (16) days in July, August and September, True and accurate copies of the transcripts of Plaintiff's Discovery Deposition transcripts are collectively attached hereto as Exhibit "D". Thereafter, on September 28, 2017, Mr. Robins participated in a de bene esse deposition. A true and accurate copy of Plaintiff's De Bene Esse Deposition transcript is attached hereto as Exhibit 13. Pursuant to the directives of Special Master Shelley Rossoff Olsen, in order to accommodate Mr. Robins' health, the entirety of his deposition took place near his home in London, England and Cardiff, Wales. Accordingly, to participate in plaintiffs' deposition, all defendants were required to either (a) expend significant time and expense by traveling to Europe for the deposition or (b) participate in the deposition telephonically at either 4:00 a.m. or 5:00 a.m. local time over the course of four (4) work weeks. 14. During his depositions, Plaintiff alleged that the near entirety of his asbestos exposures took place while working aboard foreign cruise ships, oil tankers and cargo vessels between approximately 1977 and Relative to the motion at hand, Plaintiff's primary employers during this period included Worldwide Marine Engineering (which was based in 5 3 of 23

4 Newport, Wales), Amethyst Marine Services (which was based in Cardiff, Wales) and Cardiff Craftsman (which was based in Cardiff, Wales). Plaintiff also testified that he received his mesothelioma diagnosis, along with all subsequent medical care, in the United Kingdom. See, Ex. D, generally. 15. Alfa Laval submits herewith as "Exhibit F" the Declaration of Christopher P. Herfel of McCaffery & Associates, a firm that specializes in research and analysis of Navy, marine, and other ship records. As set forth in full in Exhibit F, and specifically in Exhibit 2 thereto, Mr. Herfel researched each of the vessels on which Mr. Robins allegedly worked and determined that each was constructed in and based in shipyards outside of the United Statesprimarily, shipyards in Europe and Asia. 16. It is Alfa Laval's understanding that Plaintiffs are seeking to apportion liability to Alfa Laval in this matter based on Mr. Robins' alleged work with or around the following products: Aalborg boilers, Alfa Laval purifiers (with associated pumps), DeLaval purifiers (with associated pumps) and Alfa Laval compressors. It is Alfa Laval Inc.'s steadfast position that it bears no liability for any of the aforementioned products. Accordingly, none of the foregoing should be in any way construed as a waiver regarding Alfa Laval's purported liability for any of the aforesaid products. For the sake of convenience, however, we will refer to these products as "alleged Alfa Laval products" throughout the remainder of this motion. 17. Plaintiff's testimony regarding said alleged Alfa Laval products is as follows: Plaintiff testified that while working for Worldwide Marine between 1977 and 1979, he performed maintenance on two (2) Aalborg boilers aboard the cruise Princess.1 ships, the Pacific Princess and the Island This maintenance allegedly Alfa Laval Aalborg A/S is an entirely separate and distinct corporate entity from Alfa Laval Inc. Alfa Laval Aalborg A/S is incorporated in Denmark. It was formed when Aalborg Industries, a Danish company, was acquired by Alfa Laval AB, a Swedish corporation, in Aalborg boilers are manufactured by corporate entities outside of the United States that are entirely separate and distinct from Alfa Laval Inc. See Ex. C, Atanasio Aff. at 6. Alfa Laval Inc. does not hold any liabilities of Alfa Laval Aalborg A/S and is not the appropriate party to be sued for Mr. 6 4 of 23

5 took place while the ship was located at Todd Shipyard in San Pedro, California. He also testified to having performed this work while the ships were sailing in Alaska, Mexico and the Caribbean. Plaintiff also testified that while working aboard the Pacific Princess and the Island Princess during his employment for Cardiff Craftsman (which began in 1984), he was involved in the replacement of one (1) Aalborg boiler aboard each ship. He alleged that one (1) of the boilers was replaced in the Todd Shipyard in San Pedro, California, and the other may have been replaced in either California or Mexico. He also testified that while working for Cardiff Craftsman, he participated in the maintenance of Aalborg boilers aboard these ships, however he was unable to specify where these ships were when this work took place. Accordingly, by his own testimony, Mr. Robins was never exposed to asbestos from an Aalborg boiler in New York. Plaintiff testified that he repaired Alfa Laval purifiers aboard the Pacific Princess and Island Princess during his employment for Worldwide Marine from 1977 to This work allegedly took place while the ships were sailing between California and Mexico. Plaintiff also testified that while working aboard various Embiricos ships in the 1980s, he performed repairs on six (6) Alfa Laval purifiers. Plaintiff alleged that this work took place in the Mediterranean, Boston, Philadelphia and New York, with only one (1) of the purifier repair jobs taking place in New York. While working for Cardiff Craftsman beginning in 1984, plaintiff allegedly performed work on two (2) Alfa Laval purifiers aboard the Island Princess, one (1) Alfa Laval purifier aboard the Sea Princess (while the ship was in Australia), one (1) Alfa Laval purifier aboard the British Willow (while the ship was in the Persian Gulf), and one (1) Alfa Laval purifier aboard the Lips (while the ship was off Gibraltar). Accordingly, of all the alleged times that Mr. Robins performed work on an Alfa Laval purifier, only one (1) such repair job took place in New York. Plaintiff testified that while working for Amethyst Marine in the 1980s, he performed work on two (2) DeLaval purifiers aboard the Oswego Guardian. This work allegedly took place while the ship was off the coast of Africa. Plaintiff also recalled working on one (1) DeLaval purifier aboard the Apnia (on the east coast between Boston and Charleston), three (3) DeLaval purifiers aboard Embiricos ships (two (2) of which took place in the Mediterranean, and the other in an unrecalled American port), one (1) DeLaval purifier aboard the Island Princess during his employment for Cardiff Craftsman (in Alaska), one (1) DeLaval purifier aboard the British Willow (off of Malta) and one (1) DeLaval purifier aboard the Embiricos ship, the Lips (in Brooklyn, New York). Accordingly, of all the alleged times that the Mr. Robins performed work on a DeLaval purifier, only one (1) such repair job took place in New York. Robins' alleged injuries that he claims arise from work with Aalborg products. But as set forth herein, even if Robins' Aalborg boilers could be attributed to Alfa Laval Inc. (they cannot), Mr. alleged work with them cannot provide a basis for this Court's exercise of personal jurisdiction over Alfa Laval Inc. 7 5 of 23

6 Plaintiff also testified, in a more general sense, of having encountered Alfa Laval compressors during his career. None of these encounters were specific to any time spent in New York. See, Ex. D, generally, and at 2250: :2; 2263: :18; 2296: :11; 2313:22-25; 2341: :10; 2343:16-23; 2346: :22; 2349: :1;2351: :2; 2353:9-12; 2354:20-25;2365: :1; 2383: :12; 2385:18-22; 2386:5-13; 2388:3-5; 2389:2-4; 2390: It is abundantly clear from Mr. Robins' testimony that the overwhelming majority of his work with the alleged Alfa Laval products took place outside the United States. Furthermore, of all of said work, only two (2) purifier repair jobs took place within the State of New York. On both of these instances, the purifiers at issue were located on ships owned by the Greek shipping company, Embiricos, during periods when the ships happened to be temporarily docked or sailing in New York waters. The Embiricos ships-along with every other ship that Mr. Robins identified-were constructed in shipyards outside of the United States. See Ex. F. 19. Through discovery, Plaintiffs have produced no evidence that the two (2) alleged Alfa Laval products that Mr. Robins purportedly worked on in New York had any connection to the State of New York, other than that they were aboard international ships, constructed internationally, that happened to have been passing through New York at the time he allegedly worked with them. 20. Conversely, Alfa Laval Inc. has produced evidence demonstrating that it would not have even been the entity to manufacture or sell the equipment that Plaintiff attributes to it in this case-much less, that it directed any activities to the State of New York from which Plaintiffs' claims arise. See, Ex. C. 21. Specifically, Alfa Laval Inc. is a separate and distinct corporate entity that exists within a global affiliated group of corporations falling under the ultimate parent company Alfa Laval AB, a publicly-traded Swedish corporation. The separate and distinct corporate entities 8 6 of 23

7 that exist within the Alfa Laval AB umbrella are based in countries around the globe, including across Europe. See, Ex. C at Pursuant to Alfa Laval's global business model, both presently and historically, Alfa Laval Inc. does not make sales to customers outside of the United States. Instead, those customers are directed to the appropriate separate and distinct Alfa Laval entity within their country or geographic region for sales purposes. Further, to the extent Alfa Laval Inc. manufactures the types of products Plaintiffs attribute to Alfa Laval in this case, Alfa Laval Inc. does not sell those types of products outside ofnorth America. Id at The Declaration of Christopher Herfel attached as Exhibit F makes clear that the ships on which Mr. Robins worked were constructed in and based in shipyards outside of the United States, primarily in Europe and Asia. See Ex. F. 24. Under such circumstances, Alfa Laval Inc. would not have been the Alfa Laval entity to manufacture or sell equipment for use on these ships. To the extent that equipment bearing an Alfa Laval name was present on the ships, it was most likely manufactured and/or sold by distinct and separate Alfa Laval corporate entities in other countries. Ex. C at In fact, Alfa Laval Inc. has conducted a reasonable search and inquiry of company records for information regarding the specific ships identified in Chart A of Plaintiffs' Product Identification Interrogatories and has located no evidence indicating that Alfa Laval Inc., the only Alfa Laval entity sued in this matter, manufactured or sold any equipment identified by Plaintiff for use on such ships up to and including the time periods specified in Chart A. Id at In light of this evidence, Alfa Laval cannot be subject to personal jurisdiction in New York for purposes of Plaintiffs' claims and should be dismissed from this action. 9 7 of 23

8 ARGUMENT I. THIS COURT LACKS PERSONAL JURISDICTION OVER ALFA LAVAL IN THIS MATTER 27. To oppose a motion to dismiss, a plaintiff must demonstrate a prima facie basis for the exercise of personal jurisdiction. Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317 (1980); see also, O'Brien v. Hackensack Univ. Med. Ctr., 305 A.D.2d 199, 200 ("The burden rests on plaintiff as the party asserting jurisdiction..."). Accordingly, a plaintiff must allege jurisdictional contacts which, if proven, would be sufficient to demonstrate that the exercise of personal jurisdiction is proper under New York's general jurisdiction statute (C.P.L.R. 301) or New York's long arm jurisdiction statute (C.P.L.R. 302), and that the exercise of jurisdiction comports with the constitutional limits of due process. See, LaMarka v. Pak-Mor Mfg. Co., 95 N.Y.2d 735 (2000). 28. In this matter, Plaintiffs are, and forever will be, unable to prove jurisdiction against Alfa Laval under any controlling statute. A. Alfa Laval is Not Subject to General Jurisdiction in New York 29. Under C.P.L.R 301, a court may exercise general jurisdiction over persons, property or status. In its 2014 decision in Daimler AG v. Bauman, the Supreme Court of the United States found that in order to exercise general jurisdiction over a company, the company's "affiliations with the state [must be] so continuous and systematic as to render it essentially at home in the forum State." 571 U.S. 117, 152 (2014). Daimler specified that a corporation's place of incorporation and principal places of business are "paradigm" bases for general jurisdiction. Id. at In 2017, the Supreme Court reaffirmed its Daimler general jurisdiction decision in BNSF Railway Co. v. Tyrrell, stating that "the 'paradigm' forums in which a defendant is 'at 10 8 of 23

9 home'...are the corporation's place of incorporation and its principal place of business" and further, stated that the "Fourteenth Amendment due process constrained described in Daimler...applies to all state court assertions of general jurisdiction over nonresident defendants..." 137 S.Ct. 1549, 1553 (2017); see also, D.R. Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 128 A.D.3d 486, 487 (1st Dep't 2015) ("as defendant is neither incorporated in New York State nor has its principal place of business here, New York courts may not exercise jurisdiction over it under C.P.L.R. 301); Magdalena v. Lins, 123 A.D.3d 600, 601 ("there is no basis for general jurisdiction pursuant C.P.L.R. 301, since [defendant] is not incorporated in New York and does not have its principal place of business in New York"). 31. The general jurisdiction analysis is quite simple in this matter. Undisputedly, Alfa Laval is a New Jersey corporation with a principal place of business in Virginia. See, Ex A at 4; Ex. C. at 3. Accordingly, Alfa Laval is neither incorporated in New York, nor does it maintain its principal place of business in New York. 32. Thus, Alfa Laval is not subject to general jurisdiction in the State of New York. B. Alfa Laval is Not Subject to "Consent Jurisdiction" in New York 33. As some plaintiffs have in the past, it is anticipated that Plaintiffs will assert in the present matter that Alfa Laval, by registering to business in New York as a foreign corporation with the Secretary of State, "consented" to general jurisdiction in the State of New York. Such an assertion should be a complete non-starter for this Court. 34. Post-Daimler, numerous courts have held that the idea of "consent jurisdiction" based on the "minor act" of registering to do business in the State of New York fails to comport with due process, and accordingly is insufficient to establish general jurisdiction. Amelius v. Grand Imperial LLC, 57 Misc.3d 835, 868 (N.Y. Sup. Ct., Sep. 11, 2017); see also, e.g., 9 of 23

10 Wilderness USA, Inc. v. Deangelo Brothers, LLC, 265 F.Supp.3d 301 (W.D.N.Y. 2017) (citing Brown v. Lockheed Martin Corp.,814 F.3d. 619, 640 (2nd Cir. 2016) (if mere registration and the accompanying appointment of an in-state agent - without an express consent to general jurisdiction - nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler's ruling would be robbed of meaning by a back-door thief")); Famular v. Whirlpool Corp., 2017 U.S. Dist. LEXIS 8265, *9 (S.D.N.Y ("a foreign defendant is not subject to the general personal jurisdiction of the forum state merely by registering to do business with the state, whether that be through a theory of consent by registration or otherwise). 35. This very Court addressed this exact issue in a New York County asbestos case on September 7, Therein, in the Donald Snowdale matter (Index No /15), Justice Lucy Billings rejected the plaintiff's argument that defendant, Barnes & Jones, consented to personal jurisdiction in New York, simply by registering to do business in the State. A true and accurate copy of the Snowdale court transcript containing Justice Billings' decision is attached hereto as Exhibit "G". 36. More recently, in June 2018, Your Honor further addressed this issue in the Wayne Gibson (Index No /15) and Alex Grabowski (Index No /17) matters, wherein this Court held that "the mere fact a corporation is registered to do business is insufficient to confer general jurisdiction in a state that is neither its state of incorporation or its principal place of business." In Grabowski, Your Honor granted the motion to dismiss of defendant, Scotts Company on personal jurisdiction grounds. In Gibson, Your Honor denied the motion of defendant, Mack, strictly on procedural grounds that are not present in this case. True of 23

11 and accurate copies of the Gibson and Grabowski decisions are attached hereto as Exhibit "H" and Exhibit "I", respectively. 37. Accordingly, Alfa Laval's registration with New York State as a foreign corporation does not give rise to general jurisdiction over Alfa Laval by this or any other New York Court. C. Alfa Laval is Not Subject to Specific Jurisdiction in New York 38. Under New York's long-arm statute, C.P.L.R. 302(a), a New York court may exercise specific jurisdiction over a foreign defendant as to a cause of action arising from the following acts by that defendant: (1) transacts business in the State of New York; (2) commits a tortious act in the State of New York; (3) commits a tortious act outside the State of New York, if the foreign defendant causes injury in the state, and: (i) regularly does or solicits business, or engages in any other persistent course of contact, or derives substantial revenue from goods used or consumed or services rendered in New York; or (ii) expects or should reasonably expect the act to have consequences in New York and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possesses any real property situated in New York. 39. "Although a plaintiff is not required to plead and prove personal jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff." Pichardo v. Zayas, 122 A.D.3d 699, (2d Dep't 2014); see also, Ring Sales Co. v. Wakefield Engineering, Inc., 90 A.D.2d 496, 497 (2d Dep't 2014). 40. In June 2017, the Supreme Court of the United States reaffirmed that "[I]n order for a court to exercise specific jurisdiction over a claim, there must be an affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence that takes place in the forum State." Bristol-Myers Squibb Co. v. Superior Court, 198 L. Ed. 2d 395, 404 (2017) of 23

12 Where there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State." Id. Furthermore, "specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction." Id. at In Matter of New York City Asbestos Litig. (Trumbull),which was decided prior to Bristol-Myers, this Court found that defendant, American Biltrite ("Amtico") was not subject to specific jurisdiction under New York's long-arm statute, because there was no evidence (a) that the plaintiff's injuries arose from any of Amtico's business transactions in New York; (b) that plaintiff was exposed to asbestos as a result of a tort that Amtico committed in New York; and (c) that Amtico's actions caused injury to a person or property within the state N.Y. Misc. LEXIS 839 (N.Y. Sup. Ct. Mar. 6, 2017); see also, Snowdale and Grabowski, attached hereto as Exs. G and I (granting dismissal to defendants, Barnes & Jones and Scotts Company, on similar grounds); Trumbull v. Adience, inc., 2017 N.Y. Misc. LEXIS 5059 (N.Y. Sup. Ct. Dec. 14, 2017) (no personal jurisdiction over Grobet File Company of America, Inc. based on plaintiffs' failure to show connection between purchases of asbestos-containing product and New York, or connection between any transaction involving products manufactured, distributed or sold by defendant and New York). 42. Similarly, in this matter, there is no evidence that Alfa Laval manufactured or sold equipment for use on the ships that Mr. Robins identified in this case, see supra at much less, that Mr. Robins' injuries arose from Alfa Laval's business transactions in New York, that Alfa Laval committed any tort within the State of New York, or that Alfa Laval committed any tort outside the state of New York causing injury to a person or property in New York. Therefore, this Court has no specific jurisdiction over Alfa Laval of 23

13 1) Alfa Laval is not Subject to Specific Jurisdiction Under C.P.L.R. 302(a)(1) 43. C.P.L.R. 302(a)(1) is triggered where a defendant transacts business in New York and the asserted cause of action arises from that activity. Pichardo, 122 A.D.3d at 701. The Court of Appeals has interpreted the "arises from" prong to require that there be an "articulable nexus" or "substantial relationship" between a defendant's in-state activity and the claim asserted. McGowan v. Smith, N.Y.2d 268, 272 (1981); Johnson v. Ward, 4 N.Y.3d 516, 519 (2005); Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327, 339 (2012). "At a minimum [there must be] a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former." Id. 44. In this matter, discovery has yielded no evidence that Alfa Laval has transacted any business in New York from which Mr. Robins' injuries arose. Recall, Alfa Laval Inc.-the only Alfa Laval entity that has been sued in this matter-did not manufacture or sell the equipment at issue. Ex. C at 11. But even setting that dispositive fact aside, all of Mr. Robins alleged exposures to asbestos in New York associated with the alleged Alfa Laval products took place while Mr. Robins was employed by Wales-based mariner companies and served aboard vessels constructed outside of the United States and owned by the Greek shipping company, Embiricos. See Ex. F at 17, Exhibit 2. To the extent that equipment bearing an Alfa Laval name was present on these vessels, it was most likely manufactured and/or sold by distinct and separate Alfa Laval corporate entities based in foreign countries and sold to foreign customers. Ex. C at 11. Accordingly, the record is devoid of any evidence from which an "articulable nexus" or "substantial relationship" between any business activities Alfa Laval may have had in New York and Plaintiff's alleged injury can be demonstrated. Pichardo, 122 A.D.3d at 701; McGowan, 52 N.Y.2d of 23

14 2) Alfa Laval is not Subject to Specific Jurisdiction Under C.P.L.R. 302(a)(2) 45. Under C.P.L.R. 302(a)(2), a court may exercise personal jurisdiction over any non-domiciliary, who in person or through an agent, commits a tortious act within the state and the cause of action arises from that tortious act. This section has been construed to apply only when the defendant's wrongful conduct is performed in New York. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443 (1965). In Longines-Wittnauer, the place of the tort was determined to be the place of manufacture of the defective product. Id. at 465. Furthermore, in Feathers v. McLucas, 15 N.Y.2d 443, 458 (1965), the Court of Appeals held that "the mere occurrence of the injury in [New York] certainly cannot serve to transmute an out-of state tortious act into one committed here..."15 N.Y.2d 443, 458 (1965). 46. The Feathers Court's reasoning was also applied in Kramer v. Vogl, to deny jurisdiction over a fraud claim based upon a foreign seller's misrepresentations that occurred in Austria in connection with its shipment of goods to plaintiff in New York. 17 N.Y.2d 27 (1966). Whereas the plaintiff argued that the last act of the fraud was the arrival of the goods in New York, the Court insisted that the defendant's conduct (i.e. the misrepresentations) must have occurred in New York to confer jurisdiction. 47. Here, Plaintiffs have no evidence that Alfa Laval committed a tort in the State of New York from which Mr. Robins' alleged injuries arose. In fact, Alfa Laval's evidence demonstrates that it did not even manufacture the equipment that Plaintiffs attribute to it in this case. See supra, at Even setting aside that primary and dispositive issue, that two (2) of Mr. Robins' alleged encounters with Alfa Laval products took place while he worked for a Welch mariner company on Greek shipping vessels constructed outside of the United States that happened to of 23

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16 51. It is expected that plaintiffs' counsel will cite to the two (2) alleged occasions where Mr. Robins purportedly worked with the alleged Alfa Laval products while the Embiricos ships were passing through New York waters as a basis for establishing an "injury" to Mr. Robins in the State of New York. A plain reading of the case facts makes it obvious that such a conclusion would be entirely arbitrary and unreasonable. Plaintiff alleged during his deposition that over the course of a twenty (20) year period, he worked with asbestos-containing products aboard numerous foreign vessels while working for Welch employers. This work took him all around the world, with only a miniscule percentage of his work taking place in New York. As to the alleged Alfa Laval products specifically, this work likewise took place throughout the world, with his New York-based exposure allegations being limited to only two (2) occasions aboard two (2) Greek shipping vessels. To view the entirety of Mr. Robins' body of work that he alleges gave rise to his allegedly asbestos-related disease and conclude that New York is the appropriate forum to adjudicate his claim as to Alfa Laval would be arbitrary, unreasoned, and outside the bounds of due process. 52. Taking these facts, in totem, it cannot be stated that Mr. Robins sustained any injury in New York. ii.) Plaintiff has no evidence that Alfa Laval Regularly Solicits Business or Engages in Continuous Conduct in New York. 53. Even assuming, arguendo, that Mr. Robins sustained an injury in New York from an Alfa Laval product in New York, jurisdiction would still be invalid in New York pursuant to C.P.L.R. 302(a)(3)(i-ii). Here, Plaintiffs have produced no evidence that Alfa Laval regularly solicits business, engages in any other persistent course of contact, or derives substantial revenue from goods used or consumed or services rendered in New York. In fact, the opposite is true: Alfa Laval is a New Jersey corporation with its principal place of business in Virginia of 23

17 54. Further, Alfa Laval respectfully submits that this prong of the long-arm statute cannot survive constitutional scrutiny. Unlike general personal jurisdiction, the "inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on the relationship among the defendant, the forum, and the litigation.'" Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). This analysis does not turn on where the injury occurs; "[r]ather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him." M at Moreover, "[w]hat is needed-and what is missing here-is a connection between the forum and the specific claims at issue." Bristol- Myers Squibb Co, 137 S. Ct. at Plaintiffs simply cannot show that their claim arises from any conduct Alfa Laval has directed at the State ofnew York. iii.) Alfa Laval did not Reasonably Expect its Acts to have Consequences in New York 55. For jurisdiction to be applicable under C.P.L.R. 302(a)(3)(ii), a plaintiff must prove that the defendant had a reasonable expectation that its acts would have consequences in New York. The test of whether a defendant expects or should reasonably expect his act to have consequences within New York is an objective rather than subjective one. Brown v. Erie L. R. Co., 54 Misc. 2d 225 (1967). Furthermore, the statutory requirement of foreseeability relates to forum consequences, generally, and not to the specific event which produced the injury within the State. Allen v. Auto Specialties Mfg. Co., 45 A.D.2d 331 (3d Dep't 1974). The plaintiff must prove that the presence of the defendant's product in New York was "reasonably foreseeable, rather than fortuitous." Id. at As a preliminary matter, Alfa Laval Inc. did not manufacture or sell equipment for use on any of the ships that Plaintiff has identified in this case. See supra at To the extent that equipment bearing an Alfa Laval name was present on the ships, it was most likely of 23

18 manufactured and/or sold by distinct and separate Alfa Laval corporate entities in other countries. Ex. C at But even setting that dispositive fact aside, the fact that Mr. Robins worked with any alleged Alfa Laval product in New York was completely fortuitous, rather than foreseeable. Taking Mr. Robins' allegations as true, a foreign Alfa Laval entity allegedly sold products to Greek shipping companies to be used aboard Greek vessels. As Plaintiff's testimony proves, these vessels traveled throughout the world. Plaintiffs have produced no evidence that at the time of the aforementioned sales, any Alfa Laval entity knew of the specific routes these Greek vessels would take, if they would enter New York waters half the world away, or even more importantly, had any control over whether the vessels would come to New York or any other location around the world. It was by mere happenstance that on two (2) occasions, Mr. Robins worked on alleged Alfa Laval products while these Greek ships were in New York waters. If the Court were to hold that the alleged injury in New York was foreseeable, it would be akin to a holding that Alfa Laval would be subject to potential personal jurisdiction anywhere in the world that these two (2) Greek ships were capable of traveling, at any time while said products were still installed aboard the ships. 58. In Martinez v. Am. Std., a guest in a New York hotel was injured when an airconditioning unit malfunctioned. The unit's compressor contained an allegedly defective "terminal pin" manufactured by Vitreous, a Rhode Island Company. 91 A.D. 2d 652 (2d Dep't 1974). The Court held that jurisdiction did not lie over Vitreous, as this company merely shipped its terminal pins to the Midwest pursuant to orders placed by the compressor manufacturer, and made no shipments to New York. The record contained no evidence that Vitreous either knew or should have known that the compressors were destined for New York, and as such the Court held of 23

19 that there was no foreseeability of New York consequences. In so holding, the Court made note of the fact that there was no "purposeful affiliation" by Vitreous, as there was no evidence that the company was seeking to reach the New York market. Id. 59. In Carpino v. National Store Fixtures, Inc., the plaintiff was injured at a New York worksite when a wood scaffold collapsed. 712 N.Y.S.2d 684 (3d Dep't 2000).The wood was purchased in New York, but was originally produced at an Ohio plant of a Delaware corporation, Conner. The wood in question was part of a sale by Conner, in Ohio, to a lumber company. Conner knew that the wood was destined for New York because of the shipping directions it was given. Despite this, the Court held that Conner was not subject to New York jurisdiction, as it had not pursued "any purposeful affiliation with New York and its connection with New York...arose from [the lumber company's] decision to transport Conner's product to one of its stores in New York." Id. at The potential arguments seeking to establish jurisdiction over Alfa Laval in this matter are akin to those in Martinez, and far more tenuous than those in Carpino. Just as in Martinez, the record contains no evidence that any Alfa Laval entity-much less Alfa Laval Inc., the only Alfa Laval entity that has been sued in this matter-knew or should have known that the alleged products were destined for New York, and in selling the alleged products to a Greek shipping company, it was in no way purposefully affiliating itself with the New York market. Martinez, 91 A.D. 2d at Furthermore, just as in Carpino, the alleged Alfa Laval products ended up in New York solely based on the decisions of Embiricos, and had nothing to do with any purposeful affiliation on the part of Alfa Laval. Furthermore, whereas the defendant in Carpino knew that its product would end up in New York, there is no evidence that Alfa Laval of 23

20 had any knowledge as to the potential routes these Embiricos ships would take following the shipment of the alleged Alfa Laval products. Carpino, 712 N.Y.S.2d at For the foregoing reasons, to the extent Mr. Robins sustained any injuries in New York (he did not), those injuries were unforeseeable to Alfa Laval, and therefore Plaintiffs are unable to establish New York jurisdiction pursuant to C.P.L.R. 302(a)(3)(ii). 4) Alfa Laval is not Subject to Specific Jurisdiction Under C.P.L.R. 302(a)(4) 62. C.P.L.R. 302(a)(4) provides for specific jurisdiction over a defendant that owns, uses or possesses real property in New York. Courts have interpreted this section to require a relationship between the property and the cause of action. Lancaster v. Colonial Motor Freight, 177 A.D.2d 152 (1st Dep't 1992). 63. This action does not arise out of any real property owned, used or possessed by Alfa Laval, in New York State or otherwise. Accordingly, Plaintiffs cannot establish personal jurisdiction over Alfa Laval under C.P.L.R. 302(a)(4). D. An Exercise of Jurisdiction Over Alfa Laval Would Violate its Due Process Rights. 64. In addition to establishing proper jurisdiction under the prongs of C.P.L.R. 302(a), the exercise of long-arm jurisdiction under New York law must satisfy constitutional due process standards. Duravest, Inc. v. Viscardi, A.G., 571 F.Supp.2d 628 (2008). Due process requires sufficient "minimum contacts" between the non-domiciliary and the forum State, so that jurisdiction comports with the traditional notions of fair play and substantial justice. Int'l Shoe v. Wash., 326 U.S.310 (1945). The factors to be considered in making the reasonableness assessment, for the purpose of determining whether exercise of personal jurisdiction is proper under the Due Process Clause, are: (1) the burden on the defendant, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, of 23

21 (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering substantive social policies. Opticare Acquisition Corp. v. Castillo, 25 A.D.3d 238 (2d Dep't 2005). 65. "The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State; [r]ather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide-Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). To adhere to those principals, the inquiry into minimum contacts necessarily "focuses on the relationship among the defendant, the forum and the litigation." Walden, 134 S. Ct. at 1128 "[T]he relationship must arise out of contacts that the defendant himself creates with the forum State." Id. at In sum, [d]ue process requires that a defendant be haled into a court in a forum State based on his own affiliation with the State, not based on the random, fortuitous or attenuated contacts he makes by interacting with other persons affiliated with the State." Id. 66. As discussed, supra, New York should have no interest in the outcome of this case. Plaintiffs are citizens of the United Kingdom and Alfa Laval is a New Jersey corporation with a principal place of business in Virginia. The entirety of Mr. Robins allegations against Alfa Laval relate to his time working for Welch mariner companies aboard foreign shipping vessels. None of the ships on which he worked were constructed in the United States. Further, Alfa Laval did not manufacture or sell any of equipment for use on the ships that Mr. Robins identified in this case. See supra at To the extent that equipment bearing an Alfa Laval name was present on the ships, it was most likely manufactured and/or sold by distinct and separate Alfa Laval corporate entities in other countries. Ex. C at 11. Moreover, even setting this point aside, there is no evidence that any of the alleged Alfa Laval products used by Mr. Robins were sold to of 23

22 any customers in New York - nor did Alfa Laval have any foreseeable expectation that said products would be used in New York. For the overwhelming majority of the time Mr. Robins worked with the alleged Alfa Laval products, he did so outside of New York. The only reason Mr. Robins would have ever encountered an alleged Alfa Laval product in New York would have been by the sheer happenstance that the equipment was in place on a ship that happened to arrive New York. 67. Plaintiffs' filed this action against over thirty (30) defendants, and according to their Complaint, each of these defendants is a foreign corporation. See, Ex. A. While it is possible that one (1) or more of these defendants are subject to New York personal jurisdiction, it is clear that Plaintiffs' goals in filing this lawsuit in New York had nothing to do with New York's interests in resolving this dispute. A more likely explanation would be the New York City Asbestos Litigation's favorability as a venue for plaintiffs in asbestos cases. Such forum shopping is the antithesis of "fair play and substantial justice." 68. No substantive interests of the State of New York would be furthered should this case remain in New York, regardless of the outcome. This is because there are insufficient contacts between Alfa Laval and New York. The only reason Plaintiff may have encountered alleged Alfa Laval products in New York was due to the "random, fortuitous or attenuated contacts" a foreign Alfa Laval entity may have had with a foreign customer (e.g., the Greek shipping company, Embiricos). Walden, 134 S. Ct. at Alfa Laval is a manufacturer of maritime equipment that is designed to be used aboard vessels. The logic that would potentially allow jurisdiction over Alfa Laval in New York would be tantamount to allowing Alfa Laval to be sued in any potential jurisdiction where any vessel carrying its product could potentially travel, regardless of frequency or duration of 23

23 70. Accordingly, Alfa Laval did nothing to avail itself to the jurisdiction of New York, so as to invoke the benefits and protections of its laws, and, thus, Plaintiffs have failed to allege facts sufficient to establish minimum contacts. Unlimited Care, Inc. v. Visiting Nurse Ass'n of Eastern Massachusetts, Inc., 42 F.Supp.2d 327 (1999). CONCLUSION 71. As Alfa Laval has contested personal jurisdiction, the burden is on Plaintiffs to establish that this Court can exercise personal jurisdiction over Alfa Laval in this action. Pichardo,122 A.D.3d at Plaintiffs are unable to satisfy this burden, as they cannot establish that Alfa Laval is subject to general jurisdiction or specific jurisdiction in the State of New York. Furthermore, Plaintiffs cannot establish sufficient minimum contacts between Alfa Laval and the State ofnew York so as to avoid a violation of the Due Process Clause. 72. Based on the foregoing, it is respectfully requested that this Court issue an order granting Alfa Laval's motion to dismiss, dismissing Plaintiff's complaint, and any and all crossclaims against Alfa Laval, together with any other and further relief as this Court deems just and proper. 73. No prior applications have been made for the relief requested herein. Dated: New York, New York August 24, 2018 Christopher P. Hannan KELLEY JASONS McGOWAN SPINELLI HANNA & REBER, LLP 120 Wall Street, 30th FlOOr New York, New York (212) Attorneys for Defendant Alfa Laval Inc of 23