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State v. Exxon Mobil Corp.

United States District Court, D. Maryland

September 4, 2019

STATE OF MARYLAND, Plaintiff,
v.
EXXON MOBIL CORPORATION, et al., Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge.

         This Memorandum Opinion resolves numerous motions to dismiss a 168-page Complaint filed by the State of Maryland (“State” or “Maryland”) against approximately sixty-five defendants.[1] The State seeks to redress the alleged contamination of its waters with methyl tertiary butyl ether (“MTBE”), an oxygenate additive that was commonly blended into gasoline in the 1980s and 1990s. ECF 2 (Complaint).[2]

         The Complaint contains eleven counts. ECF 2, ¶¶ 308, 417. The first six counts allege common law tort claims: Strict Product Liability Based on Defective Design (Count I); Strict Product Liability Based on Failure to Warn (Count II); Strict Liability for Abnormally Dangerous Activity (Count III); Public Nuisance (Count IV); Trespass (Count V); and Negligence (Count VI). The remaining counts seek to impose liability under various provisions of the Environment Article (“E.A.”) of the Maryland Code (2013 Repl. Vol., 2019 Supp.): E.A. § 4-401 et seq. (Count VII); E.A. § 4-701 et seq. (Count VIII); E.A. § 9-301 et seq. (Count IX); E.A. § 9-401 et seq. (Count X); and E.A. § 7-201 et seq. (Count XI).

         Several motions are now pending. Defendant Total Petrochemicals & Refining USA, Inc. (“TPRI”)[3] moved to dismiss the Complaint for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2), and for failure to state a claim, under Fed.R.Civ.P. 12(b)(6). ECF 333. The motion is supported by a memorandum of law (ECF 333-1) (collectively, “TPRI Motion”) and two exhibits. ECF 333-2; ECF 333-3. The State opposes the TPRI Motion (ECF 357), supported by two exhibits. ECF 357-1; ECF 357-2. TPRI has replied (ECF 377), with an exhibit. ECF 377-1.

         Defendants Duke Energy Merchants, LLC (“Duke Energy”), George E. Warren Corporation (“Warren”), and Guttman Energy, Inc. (“Guttman Energy”), joined by TPRI and Hartree Partners, LP (“Hartree”), also moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim. ECF 334; see also ECF 338 (Hartree Joinder). The motion is supported by a memorandum of law. ECF 334-1 (collectively, “Warren Motion”). The State opposes the Warren Motion (ECF 358), supported by an exhibit. ECF 358-1. Defendants filed a reply (ECF 378), as well as two exhibits. ECF 378-1; ECF 378-2.

         In addition, sixty-two defendants, including Exxon Mobil Corporation (“Exxon”), TPRI, Duke Energy, Warren, and Guttman Energy, jointly moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6). ECF 335. It is supported by a memorandum of law (ECF 335-1) (collectively, the “Joint Motion”) and an exhibit. ECF 335-3. The State opposes the Joint Motion. ECF 359. Defendants have replied (ECF 381), and submitted two exhibits. ECF 381-1; ECF 381-2.

         In a separate motion, defendant 7-Eleven, Inc. (“7-Eleven”) joins the Joint Motion (ECF 336), supported by a memorandum of law. ECF 336-1 (collectively, “7-Eleven Motion”). It moves to dismiss the Complaint for failure to state a claim. ECF 336 at 1. Alternatively, it seeks “a more definite statement of [the] claims against 7-Eleven, ” pursuant to Fed.R.Civ.P. 12(e). Id. The State opposes the 7-Eleven Motion (ECF 355), supported by an exhibit. ECF 355-1. 7-Eleven has replied. ECF 379.

         In addition, defendant Lukoil Pan Americas LLC (“LPA”) moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction, and under Fed.R.Civ.P. 12(b)(6), for failure to state a claim. ECF 342. The motion is supported by a memorandum of law (ECF 342-1) (collectively, “LPA Motion”) and an exhibit. ECF 342-2. The State has filed an opposition. ECF 368. LPA replied (ECF 387), with an exhibit. ECF 387-1.

         Defendant PJSC Lukoil (“PJSC”)[4] also moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction. ECF 343. It is supported by a memorandum of law (ECF 343-1) (collectively, the “PJSC Motion”) and an exhibit. ECF 343-2. The State opposes the PJSC Motion (ECF 366), with exhibits. ECF 366-1; ECF 366-2; ECF 366-3. PJSC has replied. ECF 388.

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons stated below, I shall grant the PJSC Motion, and grant in part and deny in the part the Joint Motion. I shall deny the remaining motions.

         I. Background [5]

         A. MTBE and Water Contamination

         MTBE is a chemical compound made by combining methanol (a derivative of natural gas) and isobutylene (a by-product of the gasoline-refining process). ECF 2, ¶ 103. It was commonly blended into gasoline in the 1980s and 1990s as an “oxygenate” and “octane enhancer” to reduce carbon monoxide tailpipe emissions. Id. ¶¶ 107, 117-129. Compared with other oxygenates like ethanol, MTBE was inexpensive to manufacture because it was made from readily available refinery byproducts. Id. ¶¶ 103, 127.

         Gasoline is made by processing crude oil at a refinery. Id. ¶ 105. It is then transported through pipelines, tank ships, and barges to “common storage tanks” located at terminals around the country. Id. ¶ 106. From there, it is “transshipped” by pipeline or other means to “secondary terminals” or “depots, ” and then taken by trucks to gas stations for retail sale. Id. MTBE was blended into the gasoline at the refinery itself, or “splash blended” at terminals by adding it to truck tanks after those tanks were filled with gasoline from the terminal. Id. ¶ 105. Because MTBE-enhanced gasoline is fungible, batches were frequently comingled from different sources during the production and distribution process. Id. ¶¶ 99-100.

         MTBE allegedly enters the environment “through disposals, deposits, releases, leaks, overfills, spills, discharges and evaporative releases, ” and is “principally release[d]” while in underground storage tanks or during delivery. Id. ¶¶ 1, 109. When released, MTBE is highly soluble in groundwater, spreads rapidly, does not naturally degrade, resists removal and treatment from groundwater, and is difficult to locate. Id. ¶¶ 2, 110-11, 113. It can also migrate into subsurface-soil regions and penetrate into aquifers. Id. ¶¶ 112, 114. For these reasons, the State claims that MTBE “is and has been more difficult and more expensive to remove from groundwater than other contaminants.” Id. ¶ 114.

         The United States Geological Survey has reported that MTBE is the “second most frequently detected volatile organic chemical in groundwater in the United States.” Id. ¶ 130. Around the United States, MTBE has been detected in “over 20% of aquifers tested in places where high MTBE-content gasoline was used.” Id. MTBE has also been found in “varying concentrations and at varying times” in public water systems and private drinking-water wells in Maryland. Id. ¶¶ 218, 220. According to the State, studies have shown that MTBE “is a probable human carcinogen, ” can cause “significant adverse health effects when ingested, ” and “can render drinking water putrid and unfit for human consumption.” Id. ¶¶ 4, 137.

         B. The History of MTBE Use and Legislative Background

         In 1979, before defendants allegedly knew the harmful effects of MTBE, the Administrator of the United States Environmental Protection Agency (“EPA”) granted a waiver for the use of 7% MTBE in unleaded gasoline, finding that MTBE as a fuel additive did not cause or contribute to the failure of any emission control device or system. Id. ¶¶ 117, 134; Application for Methyl Tertiary Butyl Ether, Decision of the Administrator, 44 Fed. Reg. 12, 242, 12, 243 (Mar. 6, 1979). The market demand for MTBE and MTBE-blended gasoline began around the same time and grew rapidly, continuing well into the 1990s. ECF 2, ¶¶ 117, 125. By 1996, MTBE “ranked second among all organic chemicals produced in the United States, with virtually the entire production going into gasoline.” Id. ¶ 129.

         Growth in the MTBE market was encouraged by the 1990 Clean Air Act Amendments, which established the Reformulated Gasoline Program (“RFG Program”). Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399 (1990) (“CAA”), § 219(k). The RFG Program required the use of reformulated gasoline containing at least 2.0% oxygen by weight in designated ozone “non-attainment” areas of the country, meaning areas that do not meet the national ambient air quality standards (“NAAQS”) for ozone. Id. § 219(k)(2)(B). Subsequent EPA regulations included MTBE as one of several oxygenates to be used in the testing of reformulated gasoline. See, e.g., Use of Alternative Analytical Test Methods in the Reformulated Gasoline Program, 40 C.F.R. § 80.46(g), 61 Fed. Reg. 58304, 58306 (Nov. 13, 1996). Portions of Maryland were subject to the RFG Program. ECF 2, ¶ 122.

         The 1990 Amendments also authorized EPA's initiation of the Oxygenated Fuel Program (“OF Program”), which required gasoline in some metropolitan regions to contain at least 2.7% oxygen by weight to reduce carbon monoxide during the fall and winter months. CAA, § 219(m). The State alleges that MTBE-blended gasoline sold in non-attainment areas often exceeded the minimum oxygenate requirements in the RFG and OF programs, and was even used in the regions that were not participating in the RFG program. ECF 2, ¶ 124.

         By 2000, the federal government recognized the dangers of the release of MTBE into groundwater and took initial steps to consider eliminating it as a fuel additive. See Methyl Tertiary Butyl Ether (MTBE); Advance Notice of Intent to Initiate Rulemaking Under the Toxic Substances Control Act to Eliminate or Limit the Use of MTBE as a Fuel Additive in Gasoline, 65 Fed. Reg. 16, 094 (Mar. 24, 2000). Around this time, several states had “taken actions designed to limit the use of MTBE in gasoline.” Id. at 16, 097. Many lawsuits alleging MTBE contamination were filed and consolidated before the United States District Court for the Southern District of New York. See In re Methyl Tertiary Butyl Ether Prods. Liab. Litig. v. Atl. Richfield Co. (In re MTBE), MDL No. 1358, 2000 U.S. Dist. LEXIS 14901, at *4 (J.P.M.L. Oct. 10, 2000).

         In 2005, Congress passed the Energy Policy Act (“EPACT”), which phased out the RFG oxygenate requirement and established the Renewable Fuel Program in its place. See Energy Policy Act of 2005, Pub. L. No. 109-58, §§ 1501, 1504, 119 Stat. 594 (2005), codified in part at 42 U.S.C. § 7545 et seq.[6] The new program requires gasoline suppliers to blend their product with renewable fuels, such as cellulosic biomass ethanol, waste derived ethanol, and biodiesel. Id.

         The EPACT also directly addressed the status of MTBE as an additive to gasoline. Congress made the following findings, id. § 1502, 42 U.S.C. § 7545:

(1) since 1979, methyl tertiary butyl ether (hereinafter in this section referred to as “MTBE”) has been used nationwide at low levels in gasoline to replace lead as an octane booster or anti-knocking agent;
(2) Public Law 101-549 (commonly known as the “Clean Air Act Amendments of 1990”) (42 U.S.C. [§] 7401 et seq.) established a fuel oxygenate standard under which reformulated gasoline must contain at least 2 percent oxygen by weight; and
(3) the fuel industry responded to the fuel oxygenate standard established by Public Law 101-549 by making substantial investments in-
(A) MTBE production capacity; and
(B) systems to deliver MTBE-containing gasoline to the marketplace.

         C. Claims and Procedural History

         The State initially filed suit in the Circuit Court for Baltimore City on December 13, 2017, in its capacity as parens patriae; as trustee of the State's natural resources; and under the Maryland Environmental Standing Act, Md. Code (2013 Repl. Vol., 2019 Supp.), § 1-501 et seq. of the Natural Resources Article (“N.R.”). ECF 2. The suit named approximately sixty-five defendant manufacturers, marketers, and distributors of gasoline that together “controlled all, or substantially all, of the market in Maryland for MTBE and MTBE gasoline” for the relevant period. ECF 2, ¶ 26. Between 1995 and 2001, about 1.2 billion gallons of pure (or “neat”) MTBE was included in the reformulated gasoline sold in Maryland. Id. ¶ 214.

         Maryland alleges that defendants knew as early as 1980 that MTBE was harmful and could contaminate groundwater (id. ¶ 134), but refused to warn the public or to use safer alternatives like ethanol. Id. ¶ 206. According to Maryland, defendants “knew, or reasonably should have known, ” that the MTBE gasoline distribution and retail system throughout Maryland contained leaks. Id. ¶ 204. Even so, defendants allegedly defended and promoted MTBE, despite knowledge of its risks, and engaged in deceptive marketing of MTBE as a clean or environmentally friendly gasoline. Id. ¶¶ 161-189, 225-232. Maryland asserts that defendants “falsely or inadequately addressed MTBE” in their material safety data sheets provided to customers. Id. ¶ 233.

         As indicated, the Complaint includes claims for strict liability (defective design, failure to warn, abnormally dangerous activity); public nuisance; trespass; negligence; and violations of various State environmental statutes. The State seeks compensatory and punitive damages and costs for testing, cleanup, monitoring, and restoration of State waters, as well as an injunction requiring defendants to test and treat drinking water wells containing MTBE. Id. at 163-66.

         Defendant Atlantic Richfield Company (“ARCO”) removed the case to federal court under Section 1503 of the EPACT, 42 U.S.C. § 7545. See ECF 1. ARCO asserted that jurisdiction is proper in federal court because the case is within the court's Article III judicial powers. Id. ¶¶ 2, 5. Specifically, ARCO claimed that the allegations of MTBE contamination raise questions of federal law under the CAA and EPACT, which “together are part of a comprehensive federal scheme” (id. ¶ 5), and that plaintiff's claims conflict with, and are preempted by, federal law. ECF 1, ¶¶ 5-6. The Notice of Removal also raised other potential defenses under federal water quality standards and the Due Process and Excessive Fines Clause of the United States Constitution. Id. Moreover, ARCO asserted that “all defendants properly joined and served in this action have consented to this removal.” Id. ¶ 8.

         Thereafter, the State moved to remand. ECF 283.[7] In a Memorandum Opinion (ECF 346) and Order (ECF 347) of October 24, 2018, I denied the State's motion. I concluded that removal was proper under Section 1503 of the EPACT because the Notice of Removal identified a colorable federal defense of preemption under the Clean Air Act. ECF 346 at 21-33.[8]

         As noted, TPRI, LPA, and PJSC have each moved to dismiss the Complaint for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). ECF 333 (TPRI); ECF 342 (LPA); ECF 343 (PJSC). Sixty-two defendants, including TPRI, LPA, and PJSC, have moved for dismissal for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). See ECF 335 (Joint Motion). And, a few defendants have presented additional arguments for dismissal. See ECF 334 (Duke Energy, Warren, Guttman Energy, TPRI Supplemental Motion to Dismiss); ECF 336 (7-Eleven Joinder and Supplemental Motion to Dismiss); ECF 338 (Hartree Joinder); ECF 342 (LPA Motion to Dismiss).

         I begin by addressing the motions to dismiss for lack of personal jurisdiction. Then, I will turn to the remaining motions.

         II. Motions to Dismiss for Lack of Personal Jurisdiction

         A. Legal Standard

         Defendants TPRI, LPA, and PJSC have each moved to dismiss the Complaint for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). ECF 333 (TPRI); ECF 342 (LPA); ECF 343 (PJSC). “[A] Rule 12(b)(2) challenge raises an issue for the court to resolve, generally as a preliminary matter.” Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016). Under Rule 12(b)(2), the burden is “on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989); see Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014); Carefirst of Md., Inc. v. Carefirst Pregnancy Ctr's, Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993)).

         When the existence of jurisdiction “turns on disputed factual questions the court may resolve the [jurisdictional] challenge on the basis of a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question.” Combs, 886 F.2d at 676. In its discretion, a court may permit discovery as to the jurisdictional issue. See Mylan Labs, 2 F.3d at 64. Or, the court may rule solely on the basis of motion papers, supporting legal memoranda, affidavits, and the allegations in the complaint. Grayson, 816 F.3d at 268; Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009). In that circumstance, the “plaintiff need only make ‘a prima facie showing of personal jurisdiction to survive the jurisdictional challenge.'” Grayson, 816 F.3d at 268 (quoting Combs, 886 F.2d at 676); see also Universal Leather, 773 F.3d at 558, 560-61. However, “‘[a] threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing.'” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n.5 (4th Cir. 2005) (emphasis in original) (citation omitted); see Universal Leather, 773 F.3d at 558; Combs, 886 F.2d at 676.

         “In deciding whether the plaintiff has made the requisite showing, the court must take all disputed facts and reasonable inferences in favor of the plaintiff.” Carefirst of Md., 334 F.3d at 396. But, the court is “not required to look solely to the plaintiff's proof in drawing those inferences.” Mylan Labs, 2 F.3d at 62.

         B. Discussion

         The State alleges that defendants are “MTBE and MTBE gasoline manufacturers, marketers and distributors” that “together controlled all, or substantially all, of the market in Maryland for MTBE and MTBE gasoline” at all relevant times. Id. ¶ 26; see also id. ¶ 125 (“In or around January 1995, defendants introduced into the stream of commerce in Maryland MTBE gasoline …”). As outlined, some of the defendants contend that this Court lacks personal jurisdiction as to them.

         Fed. R. Civ. P. 4(k)(1)(A) authorizes a federal district court to exercise personal jurisdiction over a defendant in accordance with the law of the state in which the district court is located. Carefirst of Md., 334 F.3d at 396. Therefore, in Maryland, “to assert personal jurisdiction over a nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be authorized under the state's long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment.” Id.; accord Carbone v. Deutsche Bank Nat'l Tr. Co., No. RDB-15-1963, 2016 WL 4158354, at *5 (D. Md. Aug. 5, 2016); Mackey v. Compass Mktg., Inc., 391 Md. 117, 141 n.6, 892 A.2d 479, 493 n.6 (2006).

         Maryland's long-arm statute is codified at Md. Code (2013 Repl. Vol., 2019 Supp.), § 6-103(b) of the Courts & Judicial Proceedings Article (“C.J.”). It authorizes “personal jurisdiction over a person, who directly or by an agent, ” id.:

(1) Transacts any business or performs any character of work or service in the State;
(2) Contracts to supply goods, food, services, or manufactured products in the State;
(3) Causes tortious injury in the State by an act or omission in the State;
(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State;
(5) Has an interest in, uses, or possesses real property in the State; or
(6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.

         When interpreting the reach of Maryland's long-arm statute, a federal district court is bound by the interpretations of the Maryland Court of Appeals. See Carbone, 2016 WL 4158354, at *5; Snyder v. Hampton Indus., Inc., 521 F.Supp. 130, 135-36 (D. Md. 1981), aff'd, 758 F.2d 649 (4th Cir. 1985); see also Mylan Labs, 2 F.3d at 61. The Maryland Court of Appeals has “consistently held that the reach of the long arm statute is coextensive with the limits of personal jurisdiction delineated under the due process clause of the Federal Constitution” and that the “statutory inquiry merges with [the] constitutional examination.” Beyond Sys., Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 22, 878 A.2d 567, 580 (2005) (citing Mohamed v. Michael, 279 Md. 653, 657, 370 A.2d 551, 553 (1977)); see also Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir. 1996) (stating that “the two inquiries essentially become one”); accord ALS Scan, Inc. v. Dig. Serv. Consultants, Inc., 293 F.3d 707, 710 (4th Cir. 2002).

         To be sure, “the reach of the [long-arm] statute is as far as due process permits . . .” Mackey, 391 Md. at 140 n.5, 892 A.2d at 492 n.5. However, the Maryland Court of Appeals has clarified that the statutory analysis remains a requirement of the personal jurisdiction analysis. In Mackey, the Maryland Court of Appeals said, 391 Md. at 141 n.6, 892 A.2d at 493 n.6 (citations omitted):

We stated recently in Beyond v. Realtime . . . that “the purview of the long arm statute is coextensive with the limits of personal jurisdiction set by the due process clause of the Federal Constitution.” We did not, of course, mean by this that it is now permissible to simply dispense with analysis under the long-arm statute . . . Rather, . . . we interpret the long-arm statute to the limits permitted by the Due Process Clause when we can do so consistently with the canons of statutory construction.

Since Mackey, the Maryland Court of Appeals has repeatedly affirmed that “determining whether a Maryland court may exercise personal jurisdiction over a foreign defendant requires a two-step analysis.” Bond v. Messerman, 391 Md. 706, 721, 895 A.2d 990, 999 (2006); see also CSR, Ltd. v. Taylor, 411 Md. 457, 472, 983 A.2d 492, 501 (2009) (stating that personal jurisdiction analysis “entails dual considerations”). First, the court considers “whether the requirements of Maryland's long-arm statute[] are satisfied.” CSR, 411 Md. at 472, 983 A.2d at 501 (citing Bond, 391 Md. at 721, 895 A.2d at 999; Mackey, 391 Md. at 129, 892 A.2d at 486; and Beyond, 388 Md. at 14, 878 A.2d at 576). Second, it considers “whether the exercise of personal jurisdiction comports with the requirements imposed by the Due Process Clause of the Fourteenth Amendment.[]CSR, 411 Md. at 473, 983 A.2d at 501 (citing Bond, 391 Md. at 721, 895 A.2d at 999; and Beyond, 388 Md. at 15, 878 A.2d at 575). Nevertheless, the Maryland Court of Appeals has, in some situations, declined to consider the first step where the analysis of the second step demonstrates conclusively that personal jurisdiction over the defendant would violate due process. See, e.g., Bond, 391 Md. at 722, 895 A.2d at 1000.

         Due process jurisprudence recognizes “two types of personal jurisdiction: general and specific.” CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n.15 (4th Cir. 2009). The Fourth Circuit has explained:

General personal jurisdiction, on the one hand, requires “continuous and systematic” contacts with the forum state, such that a defendant may be sued in that state for any reason, regardless of where the relevant conduct occurred. Specific personal jurisdiction, on the other hand, requires only that the relevant conduct have such a connection with the forum state that it is fair for the defendant to defend itself in that state.

Id. (citing, inter alia, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984)) (internal citations omitted).

         A court may exercise general jurisdiction over foreign corporations to hear “any and all claims” against the corporations “when their affiliations with the State are so ‘continuous and systematic' as to render them essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int'l Shoe, 326 U.S. at 317). In contrast, specific jurisdiction “depends on an ‘affiliatio[n] between the forum and the underlying controversy . . .'” Id. (citation omitted) (alteration in Goodyear).

         The United States Supreme Court has long held that personal jurisdiction over a nonresident defendant is constitutionally permissible so long as the defendant has “minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Courts have separated this test into individual “prongs, ” first ascertaining whether the threshold of “minimum contacts” is met, and then considering whether the exercise of jurisdiction on the basis of those contacts is “constitutionally reasonable.” ALS Scan, 293 F.3d at 712.

         The “minimum contacts” test is met where the defendant has “purposefully avail[ed] himself of the privilege of conducting business under the laws of the forum state.” Consulting Eng'rs, 561 F.3d at 278. A determination that the defendant has established minimum contacts with the forum state amounts to a conclusion that “‘it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.'” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)).

         Generally, the court must consider the prong of constitutional reasonableness “[i]f, and only if” the minimum contacts test is met. Consulting Eng'rs, 561 F.3d at 278. The constitutional reasonableness inquiry permits a defendant “who purposefully has directed his activities at forum residents” to defeat jurisdiction, if he can “present a compelling case that the presence of some other considerations would render jurisdiction unconstitutional.” Burger King, 471 U.S. at 477. However, in some cases, the constitutional reasonableness analysis can “serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.” Id.

         As indicated, general jurisdiction allows a plaintiff to bring “any and all claims” against a party in that jurisdiction. Goodyear, 564 U.S. at 919. But, “the threshold level of minimum contacts sufficient to confer general jurisdiction is significantly higher than for specific jurisdiction.” ALS Scan, 293 F.3d at 715 (internal quotation marks omitted); accord Saudi v. Northrop Grumman Corp., 427 F.3d 271, 276 (4th Cir. 2005). And, the Fourth Circuit has long held that “broad constructions of general jurisdiction” are “generally disfavored.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1200 (4th Cir. 1993).

         To determine whether there is specific jurisdiction over a defendant, courts consider several factors. These include: “(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Eng'rs, 561 F.3d at 278 (citing ALS Scan, 293 F.3d at 715); accord Unspam Techs., Inc. v. Chernuk, 716 F.3d 322, 328 (4th Cir. 2013); ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 392 (4th Cir. 2012); Carefirst of Md., 334 F.3d at 397.

         1. TPRI

         TPRI argues that it is not properly subject either to general or specific personal jurisdiction in this Court because it has never manufactured, marketed, distributed, or sold MTBE gasoline in Maryland. ECF 333-1 at 1-5. Indeed, it asserts “there is no evidence indicating that a drop of TPRI gasoline containing MTBE is actually in Maryland, let alone evidence that TPRI specifically directed gasoline containing MTBE to the State.” Id. at 5.

         The Complaint contains minimal allegations specific to TPRI. It states only that TPRI is a Delaware corporation with its principal place of business in Texas, that TPRI is qualified to do business in Maryland, and that TPRI has a resident agent in Maryland. ECF 2, ¶ 85. However, the exhibits submitted by the State and TPRI shed further light on TPRI's role in the MTBE supply chain.

         The exhibits show the following. TPRI is a Delaware corporation that refines and manufactures gasoline. ECF 333-2 (Kim Arterburn Decl.), ¶ 2. It does not have any facilities in Maryland and has never manufactured, sold, or contracted for the delivery of MTBE products in Maryland. Id. ¶¶ 2, 11. However, TPRI availed itself of a distribution system for MTBE products whose network included Maryland. That is, TPRI sold and shipped approximately 1.5 million barrels of its MTBE gasoline to third parties via the Colonial Pipeline, a pipeline system that is dedicated to the delivery of gasoline to Maryland, Delaware, New Jersey, Pennsylvania, and New York. ECF 357-2 (Bruce Burke Decl.), ¶¶ 16, 27; see also ECF 333-2, ¶ 9. Because most of the MTBE gasoline shipped on the Colonial Pipeline was fungible and commingled with the products of other suppliers, it is impossible to determine where TPRI's MTBE gasoline was delivered. ECF 357-2, ¶¶ 22-23. However, the State's expert, Bruce Burke, reviewed TPRI's shipment data and the number of delivery points on the Colonial Pipeline in Maryland, and posits that 83.7 percent of the MTBE gasoline that TPRI shipped on the Colonial Pipeline can be tied to distribution centers that supplied MTBE gasoline to the State. Id. ¶ 27.

         TPRI's participation in the MTBE supply chain does not end there. It also sold over three million barrels of MTBE gasoline from a facility in New Jersey during the relevant time. ECF 357-2, ¶ 30; ECF 333-3 (Craig Watel Decl.), ¶ 3. More than half of this gasoline was shipped to third parties, including Shell Oil and Mobil Oil, via barge. ECF 357-2, ¶ 30; ECF 333-3 at 4-13. And, records show that Maryland received barge shipments of gasoline from New Jersey during this time. ECF 357-2, ¶ 31. Finally, along with its manufacture and sale of MTBE gasoline, TPRI also sold neat MTBE to numerous nationwide distributors of gasoline, many of which supply gasoline to Maryland. Id. ¶ 29.

         Viewing the facts and allegations in the light most favorable to Maryland, the State has made a prima facie showing that this Court has personal jurisdiction over TPRI under Maryland's long-arm statute. In relevant part, that statute permits the exercise of personal jurisdiction over one who “[c]auses tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State.” C.J. § 6-103(b)(4). The exhibits demonstrate that TPRI deliberately participated in the regional distribution of MTBE gasoline and that such conduct plausibly resulted in the regular introduction of TPRI's products into Maryland. These acts and omissions allegedly caused the State's tortious injury-i.e., the contamination of its waters. Accordingly, personal jurisdiction is proper under C.J. § 6-103(b)(4).

         In addition, the State has made a prima facie showing that personal jurisdiction over TPRI comports with due process. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), the Supreme Court stated, id. at 297:

[I]f the sale of a product of a manufacturer or distributor . . . is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.

         This is precisely the conduct that is plausibly shown here. TPRI sold and shipped large volumes of its MTBE gasoline to third parties via a pipeline dedicated to the delivery of gasoline to Maryland and the surrounding four states. ECF 357-2, ¶¶ 16, 27. It also sold neat MTBE to nationwide distributors-some of whom are also defendants in this case-whose networks included Maryland. Id. ¶ 29. Although the fungible nature of MTBE gasoline and the complex gasoline supply chain make it impossible to say where exactly TPRI's MTBE gasoline ended up, TPRI's placement of its MTBE gasoline into the stream of commerce plausibly resulted in the regular and anticipated-rather than the random or fortuitous-introduction of its products in Maryland. This constitutes purposeful availment. See In re MTBE, 399 F.Supp.2d 325, 332 (S.D.N.Y. 2005) (finding defendant purposefully availed itself of the privilege of doing business in the forum states by selling large volumes of MTBE-containing gasoline to a nationwide distributor); see also Ainsworth v. Moffett Eng'g, Ltd., 716 F.3d 174, 179 (5th Cir. 2013) (finding personal jurisdiction over nonresident defendant who sold 203 forklifts to customers in the forum state through a national distributor, consisting of approximately 1.55% of defendant's sales during that period); Hart v. Bed Bath & Beyond., 48 F.Supp.3d 837, 843 (D. Md. 2014) (finding personal jurisdiction over nonresident manufacturer who sold its “fuel gel” to national retailer with stores in Maryland and retailer in fact sold 1, 992 bottles of the gel in Maryland). Cf. J. McIntyre Mach. Ltd. v. Nicastro, 564 U.S. 873, 885-86 (2011) (Breyer, J., concurring) (finding no personal jurisdiction over a British company that directed marketing and sales efforts at the United States through a distributor, but whose only contact with the forum state was the sale of one of its machines to a resident of that state); see also Hart, 48 F.Supp.3d at 842 (noting that Justice Breyer's concurrence in J. McIntyre is controlling).

         Indeed, courts in MTBE cases brought in other states have found personal jurisdiction over TPRI based on the kind of conduct shown here. See Rhode Island v. Atl. Richfield Co. (Rhode Island MTBE), 357 F.Supp.3d 129, 146-47 (D.R.I. 2018) (finding that jurisdiction over TPRI was proper in Rhode Island where state alleged that TPRI introduced MTBE “into the sequence of pipelines and storage tanks dedicated to the delivery of gasoline to Rhode Island”); State v. Atl. Richfield Co. (Vermont MTBE), 142 A.3d 215, 224 (Vt. 2016) (finding plaintiff plausibly alleged that TPRI was subject to personal jurisdiction in Vermont based on its supply of MTBE gasoline to the nationwide distribution system).

         Moreover, the State's claims arise out of TPRI's contacts with Maryland, as required for specific personal jurisdiction. See Goodyear, 564 U.S. at 919. The State brings this suit for the tortious manufacture, marketing, sale, and distribution of MTBE that caused the contamination of its waters, and TPRI's contacts with Maryland arise from its manufacture and nationwide distribution of MTBE products.

         Finally, the exercise of specific personal jurisdiction over TPRI is constitutionally reasonable. TPRI is a national corporation and has not shown that it would bear any unique burden litigating this case in Maryland; it says only that it has no presence here and is defending similar litigation in other states. ECF 333-1 at 17. By contrast, the State has a strong interest in trying its case against TPRI in Maryland, alongside the other alleged tortfeasors, and where evidence concerning its MTBE contamination will be located.

         Accordingly, I shall deny TPRI's motion to dismiss for lack of personal jurisdiction.

         2. LPA & PJSC

         Defendants LPA and PJSC[9] are corporate affiliates, and both move to dismiss the Complaint for lack of personal jurisdiction. ECF 342 (LPA); ECF 343 (PJSC); see also ECF 140 (Disclosure of Corporate Interest Statement of Feb. 22, 2018 filed by LPA stating that it is an indirect, wholly owned subsidiary of PJSC). They argue that they are not properly subject to this Court's personal jurisdiction because they never sold or delivered MTBE gasoline in Maryland, nor do they have any presence in Maryland. ECF 342-1 at 1; ECF 343-1 at 1-2.

         The State argues that LPA and PJSC have waived their right to challenge personal jurisdiction. ECF 365 at 9-11; ECF 367 at 16-17. It points out that LPA and PJSC did not file their motions to dismiss for lack of personal jurisdiction until October 5, 2018, weeks after they joined in the submission of the motion to dismiss for failure to state a claim, filed by sixty-two defendants on September 13, 2018. See ECF 335-1. Because that initial motion to dismiss did not raise the defense of personal jurisdiction, the State argues that LPA and PJSC have waived this defense.

         A defendant may waive the defense of personal jurisdiction by failing to timely raise it in the time prescribed by Fed.R.Civ.P. 12. Rule 12(g)(2) provides that “a party that makes a motion under [Rule 12] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Rule 12(h)(1)(A) further clarifies that a “party waives any defense listed in Rule 12(b)(2)-(5) [including defense of lack of personal jurisdiction] by . . . omitting it from a motion in the circumstances described in Rule 12(g).”

         It is true, as the State asserts, that LPA and PJSC filed their motions to dismiss for lack of personal jurisdiction after the submission of the joint motion to dismiss for failure to state a claim filed by them and sixty other defendants. However, two days before the joint motion was filed, the defendants submitted a proposed briefing schedule to the Court. ECF 331 (Letter to Court of Sept. 11, 2018). That letter stated that LPA and PJSC “will join in the consolidated motion to dismiss, ” which was due on September 13, 2018, and that “they will also file a separate motion to dismiss based on individualized defenses, to be due on September 27, 2018.” Id. at 3-4. Further, it provided that the State consented to the briefing schedule. Id. at 4.[10]

         Accordingly, the State was aware of the intention of LPA and PJSC to raise individualized defenses before the defendants submitted the joint motion to dismiss on September 13, 2018. In light of this advance notice to the State, and particularly because of the early stage of this litigation, as well as the size and complexity of the case, I conclude that LPA and PJSC did not waive the defense of personal jurisdiction by failing to raise it in the joint motion filed by them and sixty other defendants. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60-61 (2d Cir. 1999) (observing that in determining whether waiver or forfeiture of objections to personal jurisdiction has occurred, “we consider all of the relevant circumstances”).

         The State argues that the motions of LPA and PJSC should nonetheless be denied because they are properly subject to specific personal jurisdiction in this Court. ECF 365 at 13; ECF 367 at 22. I address each motion in turn.

         a. LPA

         LPA argues that this Court lacks personal jurisdiction because the Complaint is devoid of “a single allegation against [it].” ECF 342-1 at 3. Further, it asserts that it is a “trading entity” that “simply has nothing to do with the MTBE dispute.” Id. at 5.

         In fact, the Complaint contains few allegations specific to LPA. It alleges only that LPA is a Delaware corporation, is qualified to do business in Maryland, has a resident agent in Maryland, and is “a successor in interest to relevant assets of GPMI.” ECF 2, ¶ 62. However, the Complaint alleges that defendants together “represent substantially all of the Maryland market for MTBE gasoline.” Id. ¶ 98. And, the evidence submitted by the State and LPA shows the following: LPA is a “trading company whose core business is buying and selling crude oil and petroleum products such as . . . gasoline, and gasoline components.” ECF 342-2 (Simon Fenner Decl.), ¶ 4; ECF 365-1 (Bruce Burke Decl.), ¶ 27. It “essentially acts as a middleman.” ECF 342-2, ¶ 5. LPA never bought, sold, blended, or delivered MTBE products in Maryland. ECF 387-1 (Simon Fenner Supp. Decl.), ¶¶ 2-6. In 2003 and 2004, however, LPA sold large volumes of MTBE gasoline to several national and regional distributors, including BP, Chevron, Hess, Shell, and Valero. ECF 365-1, ¶¶ 28-29. Most of these transactions involved delivery of gasoline to the Colonial Pipeline, which is dedicated to the supply of gasoline to Maryland, Delaware, New Jersey, Pennsylvania, and New York. Id. ¶¶ 28, 30. Based on this information, the State's expert concluded that LPA supplied MTBE gasoline to Maryland during the relevant period. Id. ¶ 30.

         This evidence plausibly demonstrates that LPA's contacts with Maryland are similar to those of TPRI. That is, LPA sold and shipped MTBE gasoline to national and regional distributors via the Colonial Pipeline, a pipeline system dedicated to the supply of gasoline in Maryland and the surrounding four states. For similar reasons, therefore, the State has made a prima facie showing that LPA is properly subject to this Court's specific personal jurisdiction. See supra, Section II.B.1. In particular, personal jurisdiction is permitted under Maryland's long-arm statute, which authorizes personal jurisdiction over any person who “[c]auses tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State.” C.J. § 6-103(b)(4).

         The exercise of specific personal jurisdiction over LPA also comports with due process. LPA sold and delivered MTBE gasoline to large distributors along the Colonial Pipeline. This conduct shows purposeful availment. See Vermont MTBE, 142 A.3d at 225 (finding specific personal jurisdiction over defendant who supplied MTBE gasoline to distribution system whose network included the forum state); In re MTBE, 399 F.Supp.2d at 332 (stating that defendant “is subject to personal jurisdiction in each of the forum states because it supplies MTBE-containing gasoline to the national market.”). The State's claims arise out of LPA's contacts with Maryland, as required for specific personal jurisdiction. See Goodyear, 564 U.S. at 919. And, LPA has not shown that this Court's exercise of specific personal jurisdiction over it would be unreasonable.

         Accordingly, I shall deny LPA's motion to dismiss the Complaint for lack of personal jurisdiction.

         b. PJSC

         PJSC contends that this Court lacks personal jurisdiction over it because it is a Russian holding company that has never been directly involved in the supply chain for MTBE gasoline in the United States. ECF 343-1 at 2-3. The State argues, however, that PJSC is properly subject to specific personal jurisdiction in this Court based on its own activities and the activities of its indirect subsidiary, GPMI. ECF 367 at 2-3.

         The exhibits submitted by the State and PJSC show the following. PJSC is a Russian company that has hundreds of subsidiaries. ECF 343-2 (Anatoly Martynov Decl.), ¶¶ 7-8. It owns 100 percent of Lukoil Americas Corporation (“LAC”), which in turn owned 100 percent of GPMI, a Maryland corporation, from 2000 to 2011. Id. ¶¶ 5, 14; ECF 367-2 at 67-74 (Merger Agreement of Nov. 2, 2000); see also ECF 367-3 at 72 (stating that “Getty is a wholly-owned subsidiary of [LAC], which is in turn owned by [P]SC], Russia's largest vertically integrated oil company.”). PJSC served as a guarantor for GPMI on multiple contracts, including: (1) a multi-year gasoline supply agreement between GPMI and BP North America, another Maryland corporation, ECF 367-2 at 93-98 (Guaranty Agreement of Oct. 2, 2000); (2) GPMI's lease agreement for hundreds of gas stations, including stations in Maryland, id. at 158-77 (Guaranty Agreement of Nov. 2, 2000); and (3) a $475 million loan GPMI obtained in 2005, ECF 367-3 at 70, 86-112 (Guaranty Agreement of Sept. 19, 2005). PJSC made significant other capital contributions to GPMI. ECF 367-3 at 76 (“Furthermore, to date [P]SC] has made over $50 million in capital contributions to GPMI] and plans for additional contributions going forward.”); ECF 2, ¶ 272.

         PJSC also entered into a licensing agreement with GPMI to use the Lukoil brand throughout the United States, and funded a campaign for the rebranding of GPMI's gas stations. ECF 367-3 at 56-67 (License Agreement of Aug. 21, 2003); ECF 367-3 at 74 (Confidential Memorandum sent by PJSC and GPMI in Aug. 2005 re $475 million loan, stating: “The rebranding will be supported by a significant marketing and advertising campaign (approximately $10MM per year) to be funded by [P]SC], which should increase brand awareness as a tier one brand and position Lukoil gasoline as a non-Middle Eastern gasoline alternative.”). And, when GPMI became unprofitable, PJSC allegedly orchestrated and carried out a scheme to transfer all of GPMI's profitable assets to another subsidiary and drive GPMI into bankruptcy. ECF 367 at 12- 16; ECF 2, ¶¶ 287-91.

         Notably, however, the declaration submitted by PJSC states that PJSC has never manufactured, distributed, sold, or purchased MTBE in the United States (ECF 343-2, ¶ 12); never sold gasoline in the United States, including gasoline containing MTBE (id. ¶ 11); never owned or operated a refinery, a petroleum product terminal, or service station in the United States (id. ¶ 10); has no employees and conducts no operations in the United States (id. ¶ 13); maintained its own books and records (id. ¶ 20); and never controlled the day-to-day operations of GPMI, including its budgeting, marketing, operating, personnel, or sales. Id. ¶ 22.

         As a threshold matter, I conclude that the State has not made a prima facie showing that PJSC is subject to specific personal jurisdiction in this Court based on its own conduct. It has not shown that PJSC purposefully availed itself of doing business in Maryland in any way, apart from its role as the indirect corporate parent of GPMI, a Maryland corporation. That alone is not enough. See Debt Relief Network, Inc. v. Fewster, 367 F.Supp.2d 827, 830 (D. Md. 2005) (“… it is also true that ‘a foreign parent corporation is not subject to the jurisdiction of a forum state merely because its subsidiary is present or doing business there'”) (quoting Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 218 (5th Cir. 2000)); see also Vitro Elec. v. Milgray Elec., Inc., 255 Md. 498, 502, 258 A.2d 749, 751 (1969) (“[A] forum corporation is not construed as doing business within a state merely because of its ownership of all of the shares of stock of another corporation doing business in the state.”). Moreover, PJSC's contacts with Maryland as the indirect corporate parent of GPMI-serving as a guarantor on GPMI's major contracts and providing capital to GPMI-do not provide the basis for this suit. See Saudi, 427 F.3d at 276.

         Therefore, the question is whether PJSC is subject to personal jurisdiction in this Court because of the activities of its subsidiary, GPMI. It is well settled that “[a] corporation exists as a legal entity separate and distinct from its corporate shareholders.” Cancun Adventure Tours, Inc. v. Underwater Designer Co., 862 F.2d 1044, 1047 (4th Cir. 1988); see United States v. Bestfoods, 524 U.S. 51, 61 (1998) (“It is a general principle of corporate law deeply ‘ingrained in our economic and legal systems' that a parent corporation . . . is not liable for the acts of its subsidiaries.”) (citation omitted). Thus, “it is generally the case that the contacts of a corporate subsidiary cannot impute jurisdiction to its parent entity.” Saudi, 427 F.3d at 276.

         However, the Fourth Circuit has observed: “‘[F]ederal courts have consistently acknowledged that it is compatible with due process for a court to exercise personal jurisdiction over an individual . . . that would not ordinarily be subject to personal jurisdiction in that court when the individual . . . is an alter ego . . . of a corporation that would be subject to personal jurisdiction in that court.'” Newport News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 433 (4th Cir. 2011) (quoting Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 653 n.18 (5th Cir. 2002)) (alterations in original). So, “[t]o assert jurisdiction over a parent company based on the conduct of a subsidiary, the court must find circumstances warranting it to pierce the corporate veil.” Newman v. Motorola, Inc., 125 F.Supp.2d 717, 722-23 (D. Md. 2000). The law of the forum state determines whether the corporate veil should be pierced to exercise personal jurisdiction over a nonresident defendant. Burns & Russell Co. v. Oldcastle, Inc., 198 F.Supp.2d 687, 697 (D. Md. 2002).

         Notably, “Maryland generally is more restrictive than other jurisdictions in allowing a plaintiff to pierce the corporate veil.” Harte-Hanks Direct Mktg./Balt., Inc. v. Varilease Tech. Fin. Grp., 299 F.Supp.2d 505, 514 (D. Md. 2004) (citing Residential Warranty Corp. v. Bancroft Homes Greenspring Valley, Inc., 126 Md.App. 294, 728 A.2d 783, 790-91 (1999)). The Maryland Court of Appeals has adopted the so called “agency” test in deciding whether to pierce the veil separating parent corporations from their subsidiaries for jurisdictional purposes. Mylan Labs, 2 F.3d at 61 (citing Vitro Elec., 255 Md. at 501-03, 258 A.2d at 751-52); Haley Paint Co. v. E.I. Dupont De Nemours & Co., 775 F.Supp.2d 790, 797 (D. Md. 2011). Under the agency test, the court may attribute the actions of a subsidiary corporation to the parent corporation only if the parent exerts considerable control over the activities of the subsidiary. Mylan Labs, 2 F.3d at 61 (citing Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 335-38 (1925)); see Fin. Co. of Am. v. Bank of Am. Corp., 493 F.Supp. 895, 903-08 (D. Md. 1980). The central inquiry is “whether significant decisions of the subsidiary must be approved by the parent.” Mylan Labs, 2 F.3d at 61.

         Courts consider various factors in determining whether the requisite level of control exists, such as “whether the parent and subsidiary maintain separate books and records, employ separate accounting procedures, and hold separate directors' meetings.” Id. In addition, courts consider “the level of interdependence between parent and subsidiary.” Id. (citing Harris v. Arlen Props., Inc., 256 Md. 185, 200, 260 A.2d 22, 29 (1969)). “Finally, the court must find that [the parent] knew, or should have known, that its conduct would have some impact in Maryland.” Mylan Labs, at 61-62.

         The exhibits demonstrate that PJSC exercised some control over GPMI. PJSC contributed capital to GPMI, served as a guarantor on GPMI's major contracts, oversaw GPMI's budget, and shared its brand name with GPMI. But, the exhibits also show that PJSC and GPMI existed largely as separate entities; they maintained their own books and records, had their own boards of directors, and did not comingle their accounts. ECF 343-2, ¶¶ 18, 20. Moreover, in the declaration submitted by PJSC in support of its motion, its corporate representative asserts that PJSC never exercised control over the day-to-day operations of GPMI. Id. ¶ 22.

         On these facts, the State has not sustained its burden of showing that PJSC exerted a degree of control over GPMI greater than that of a typical parent company and, thus, that GPMI's contacts with Maryland may be imputed to PJSC for jurisdictional purposes. See Haley Paint Co. v. E.I. Dupont de Nemours & Co., No. RDB-10-0318, 2012 WL 1145027, at *4 (D. Md. Apr. 3, 2012) (finding insufficient control where evidence showed that parent company was required to “approve the most significant contracts entered into by [the subsidiary]” but that subsidiary had significant autonomy in its day-to-day operations); Newman, 125 F.Supp.2d at 723 (declining to pierce the corporate veil where the parent and subsidiary used consolidated financial statements and the parent had to approve major decisions of the subsidiary because the subsidiary was a separate corporate entity with its own financial records and there was no allegation that subsidiary was merely a sham company); see also Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 371 (D. Md. 1975) (“Notwithstanding the fact that the parent may own all of a subsidiary's stock, and interlocking directorships may exist between the two corporations, it is axiomatic that if a subsidiary maintains its own books and accounts, and makes its own marketing, purchasing, management and other policy decisions, it cannot be held to be acting as an agent of the parent.”).

         Viewing the facts in the light most favorable to the State, I conclude that the State has not made a prima facie case for personal jurisdiction over PJSC. The record is devoid of facts from which sufficient minimum contacts with Maryland may be reasonably inferred. And, the exercise of personal jurisdiction over PJSC, a foreign corporation, would impose a significant burden upon it. See Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 115 (1987) (“The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.”). In these circumstances, subjecting PJSC to personal jurisdiction in this Court would “offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe, 326 U.S. at 316 (quoting Milliken, 311 U.S. at 463).

         As an alternative to granting PJSC's motion, the State asks the Court for the opportunity to conduct limited jurisdictional discovery. ECF 367 at 30-31. Specifically, the State argues that jurisdictional discovery “into [P]SC]'s own contacts with Maryland, as well as its role in managing GPMI, would resolve any uncertainty about [P]SC]'s involvement in GPMI's blending and sale of MTBE gasoline in Maryland.” Id. at 31.

         “Discovery under the Federal Rules of Civil Procedure is broad in scope and freely permitted.” Mylan Labs, 2 F.3d at 64. However, district courts “‘have broad discretion in [their] resolution of discovery problems that arise in cases pending before [them].'” Carefirst of Md., 334 F.3d at 402 (quoting Mylan Labs, 2 F.3d at 64) (alterations in Mylan Labs). In some cases, where the record suggests some indicia of personal jurisdiction, limited jurisdictional discovery may be warranted to ascertain more facts. See, e.g., Combs, 886 F.2d at 676-77 (defendants' solicitations to investors in the forum state were sufficient to establish a prima facie case for jurisdiction); Androutsos v. Fairfax Hosp., 323 Md. 634, 649-50, 594 A.2d 574 (1991) (defendant's advertisement directed at forum state was indicia of personal jurisdiction). But, “[w]hen a plaintiff offers only speculation or conclusory assertions about contacts with a forum state, a court is within its discretion in denying jurisdictional discovery.” Carefirst of Md., 334 F.3d at 402-03 (citing McLaughlin v. McPhail, 707 F.2d 800, 806 (4th Cir. 1983) (concluding that district court did not abuse its discretion in denying jurisdictional discovery when, “[a]gainst the defendants' affidavits, ” plaintiff “offered nothing beyond his bare allegations that the defendants had had significant contacts with the [forum] state of Maryland”)).

         Indeed, the Fourth Circuit has said that, “where a plaintiff's claim of personal jurisdiction appears to be both attenuated and based on bare allegations in the face of specific denials made by defendants, the court need not permit even limited discovery confined to issues of personal jurisdiction should it conclude that such discovery will be a fishing expedition.” Carefirst of Md., 334 F.3d at 403 (citation omitted); see Unspam Tech., Inc. v. Chernuk, 716 F.3d 322, 330 n.1 (4th Cir. 2013) (suggesting that the court did not abuse its discretion in denying jurisdictional discovery based on conclusory allegations of personal jurisdiction); ALS Scan, 293 F.3d at 716 n.3 (upholding district court's refusal to allow plaintiff to engage in jurisdictional discovery where plaintiff's request was based on “conclusory assertions”).

         In my view, jurisdictional discovery is not warranted here. The record lacks any plausible indicia that PJSC had minimum contacts with Maryland or exerted so much control over its subsidiary, GPMI, such that GPMI's contacts may be imputed to PJSC. The State has not pointed to facts that contradict PJSC's declaration, (ECF 343-2), outlined earlier, nor has it suggested any reason to question its accuracy. Although this Court “must take all disputed facts and reasonable inferences in favor of the plaintiff, ” Carefirst of Md., 334 F.3d at 396, it is “not required to look solely to the plaintiff's proof in drawing those inferences, ” Mylan Labs, 2 F.3d at 62.

         Accordingly, I will deny the State's request for jurisdictional discovery as an alternative to ruling on the issue of personal jurisdiction over PJSC. And, I shall grant ...


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