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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THE SUCCESSOR AGENCY TO THE 

FORMER EMERYVILLE 

REDEVELOPMENT AGENCY AND THE 

CITY OF EMERYVILLE,

Plaintiff,

v.

SWAGELOK COMPANY, et al.,

Defendants.

Case No. 17-cv-00308-WHO 

ORDER DENYING HANSON 

BUILDING MATERIALS LIMITIED’S 

MOTION TO DISMISS SECOND 

AMENDED COMPLAINT FOR LACK 

OF PERSONAL JURISDICTION

Re: Dkt. No. 82

INTRODUCTION

In this case concerning environmental contamination on a property in Emeryville, 

California, defendant Hanson Building Materials Limited (“HBML”), which is located in the 

United Kingdom, moves to dismiss the second amended complaint (“SAC”) pursuant to Federal 

Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. However, plaintiffs have made

a prima facie showing that HBML has had contacts with the state of California, plaintiffs’ 

CERCLA claim arises out of HBML’s successor liability, and it is not unreasonable to exercise 

jurisdiction over HBML. Swagelok and Whitney, as cross-claimants, have alternatively made a 

prima facie showing of alter ego liability. Accordingly, HBML’s motion to dismiss is DENIED.

BACKGROUND

I. CONTAMINATION OF THE PROPERTY

The plaintiffs, Successor Agency to the former Emeryville Redevelopment Agency 

(“Successor Agency”) and the City of Emeryville (“City”), bring ten claims under the 

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the 

Resource Conservation and Recovery Act (“RCRA”), and various California laws, to recover 
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environmental cleanup costs and related relief from plaintiffs’ investigation of contamination on a 

property in Emeryville, California. Defendants HBML, Swagelok Company (“Swagelok”), 

Whitney Research and Tool Co. (“Whitney”), and Catherine Lennon Lozick (“Lozick”), are 

allegedly responsible for the contamination caused by industrial activities that began 

approximately in 1910 on 5679 Horton Street in the City of Emeryville, California (“the 

Property”). See Second Amended Complaint (“SAC”) ¶ 2.

From approximately 1910 to 1959, the Property was owned by the Marchant Calculating 

Machine Company (“Marchant”), a California company that manufactured mechanical calculating 

machines. SAC ¶ 3. Marchant’s operations used various oils, chlorinated solvents, and other 

chemicals that have been found in the soil at the Property, in groundwater on and down gradient 

from the Property, and in vapors inside large buildings located on the Property. SAC ¶¶ 5, 21. 

In 1958, Marchant was consolidated via merger with Smith-Corona Inc., a New York

corporation and Marchant was renamed Smith-Corona Marchant Inc. (“SCM”). SAC ¶ 3; 

Bookspan Decl. ¶ 9. The following year, SCM moved operations to a different location along the 

border of the cities of Oakland and Berkeley. Id. SCM regularly conducted business in California 

and continued operating the Marchant business as a division within SCM. Id. By 1963, SCM 

renamed itself SCM Corporation. It continued to operate in California until it closed the Marchant 

division in approximately 1972. Id. ¶ 9. 

Affiliates of defendant Swagelok purchased the Property in the mid-1960s and owned it 

until the late-1990s. SAC ¶¶ 4, 11. Swagelok is an Ohio corporation with its principal place of 

business in Solon, Ohio. Id. The Property was technically operated by defendant Whitney, which 

was controlled and dominated by Swagelok. Id. Whitney was founded in 1959 as a California 

corporation and is now dissolved. SAC ¶ 53. Whitney produced machine valves and associated 

valve parts on the Property. Id. It also allegedly contaminated the Property through its operations,

including in the grease room, hazardous waste area, solvent recovery area, and drum storage areas. 

SAC ¶ 52.

The Property changed hands once again in 1999 when the former Redevelopment Agency, 

a public entity formed under California law and authorized to undertake environmental cleanup 
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projects, purchased most of it from a Swagelok controlled entity. SAC ¶ 11. The proceeds of that 

sale, assets worth in excess of $1.5 billion, and approximately 65% ownership interest in 

Swagelok, all went to defendant Catherine Lozick as the sole beneficiary of the CLL Trust, in 

2003. SAC ¶ 60. Since that time, the former Redevelopment Agency’s rights, powers, and 

obligations have vested by statute in plaintiff Successor Agency, a separate public entity located 

and operating in Alameda County, California. Id. 

II. INVESTIGATION INTO SUBSEQUENT MERGERS AND OWNERSHIP

The Successor Agency investigated the contamination when it acquired the Property. SAC 

¶ 20. Successor Agency identified a series of mergers that also linked Marchant and SCM’s 

alleged contamination on the Property to defendant HBML via a series of transactions in the mid1980s. SAC ¶ 22. 

HBML was incorporated in 1950 under the name C. Wiles Limited, as a limited company 

organized and existing under the laws of England and Wales. See Rogers Decl. ¶ 2. Its sole 

current office and headquarters, which is its registered principal place of business, is in Berkshire, 

England. Id. HBML has operated under several different names, including Wiles Group Limited, 

Hanson Limited, Hanson PLC, and Hanson Trust PLC. HBML is the same entity originally 

formed in 1950 though it has gone by different names since its incorporation.1

HBML first acquired control over SCM through hostile takeover tactics, including tender 

offers to shareholders. SAC ¶ 23. Then, intent on liquidating the SCM conglomerate for profits, 

HBML formed several new Delaware corporations in 1985 as indirect subsidiaries with names 

beginning with “HSCM,” (i.e., HSCM-1 to -20), referred to as “fan companies.” SAC ¶ 24; 

Hempstead Decl. ¶ 7. One of those fan companies, HSCM-20, eventually was merged into SCM 

in 1986, with HSCM-20 as the surviving entity with residual assets and legacy liabilities. SAC ¶¶

27, 28; Hempstead Decl. ¶ 12. HBML then caused HSCM-20 to merge into another subsidiary, 

HSCM Holdings Inc., which then merged again into HBML subsidiary HM holdings, Inc. (“HM 

 

1 This Order refers to defendant as HBML regardless of its name at the time. To the extent this 

Order refers to former company names interchangeably, such as Hanson Trust PLC, it is 

undisputed that HBML is the same entity that went by these former names at different stages of its 

existence since 1950.
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Holdings”). SAC ¶ 29; Hempstead Decl. ¶¶ 13-15. Plaintiffs’ theory of the case is that these 

mergers ultimately caused Marchant’s contamination liability for the Property, and its 

jurisdictional contacts with California, to flow into HSCM-20, which was controlled by HBML. 

SAC ¶¶ 27-28. HBML’s theory in defense is that the relevant transactional activities occurred 

under the control of its United States counterparts, particularly Hanson Industries, which was 

distinct from HBML in the United Kingdom.

Plaintiffs nonetheless allege that HBML’s control over these mergers and the liquidation of 

SCM is demonstrated by a 1989 initial public offering for a typewriter business that was marketed 

in California and other places. SAC ¶ 32; Hamidi Decl. ¶ 8, Ex. D. During the IPO, HBML 

changed the name of HSCM-10 to Smith Corona Corporation and then dominated and controlled 

the transactions. SAC ¶¶ 32-34; Hamidi Decl. ¶ 8, Ex. D at 5 (HBML 2968). Smith Corona 

Corporation, HM Holdings, and other entities that HBML controlled entered transactions referred 

to in the 1989 IPO prospectus as the “Reorganization.” SAC ¶ 35. In the Reorganization, Smith 

Corona Corporation and HM Holdings entered a Cross Indemnity Agreement in which HBML 

assured prospective buyers that the company was protected from all “Hanson Liabilities,” defined 

as SCM non-typewriter businesses, past use of property, release of hazardous substances, and 

nuisances from non-typewriter operations or properties. SAC ¶ 36.

Following the investigation, plaintiffs plead that the presence of contaminants on the 

Property can be traced to the operations of Marchant, SCM’s Marchant division, and Swagelok 

and Whitney. SAC ¶ 5.

III. PROCEDURAL HISTORY

Successor Agency and the City filed this lawsuit on January 20, 2017 and amended the 

complaint on June 30, 2017. Dkt. Nos. 1, 42. Swagelok and Lozick separately answered and filed 

crossclaims against HBML and counterclaims against plaintiffs. Dkt. Nos. 46, 50. 

In October 2017, I issued an Order granting the parties’ proposed stipulation to amend the 

pleading to properly identify HBML as the named party, for Whitney to bring crossclaims against 

HBML, and for the parties to conduct jurisdictional discovery. Dkt. No. 66. That discovery led to 

the production of thousands of pages of documents, hundreds of emails between counsel, several 
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30(b)(6) depositions, and four written discovery disputes brought to the court’s attention. Noma 

Decl. ¶¶ 6-10. Stopping short of raising additional disputes, Lozick maintains that HBML 

engaged in certain jurisdictional discovery abuses and seeks to reserve the right to extend 

jurisdictional discovery if needed. 

Plaintiffs filed the operative second amended complaint on October 5, 2017. Dkt. No. 67. 

On December 4, 2017, HBML moved to dismiss for lack of personal jurisdiction. Dkt. No. 82.

LEGAL STANDARD

A court’s jurisdiction to render judgment against a person depends on the court’s having 

personal jurisdiction against that person. See Int'l Shoe Co. v. State of Wash., Office of 

Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). “For a court to exercise personal 

jurisdiction over a nonresident defendant, that defendant must have at least ‘minimum contacts’ 

with the relevant forum such that the exercise of jurisdiction does not offend traditional notions of 

fair play and substantial justice.” Boschetto v. Hansing, 539 F.3d 1011, 1015–16 (9th Cir. 2008) 

(internal quotations and citations omitted). 

A court may exercise general or specific jurisdiction. Fields v. Sedgwick Associated Risks, 

Ltd., 796 F.2d 299, 301 (9th Cir.1986). General jurisdiction exists when a defendant engages in 

“continuous and systematic general business contacts” with the forum state. Helicopteros 

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). In determining whether specific 

jurisdiction exists, courts employ a three-factor test: 

(i) The non-resident defendant must purposefully direct his activities or 

consummate some transaction with the forum or resident thereof; or perform 

some act by which he purposefully avails himself of the privilege of 

conducting activities in the forum, thereby invoking the benefits and 

protections of its laws; 

(ii) the claim must be one which arises out of or relates to the defendant's 

forum-related activities; and

(iii) the exercise of jurisdiction must comport with fair play and substantial 

justice, i.e. it must be reasonable.

Boschetto, 539 F.3d at 1016 (internal quotations and citations omitted). The plaintiff bears the 

initial burden of establishing that personal jurisdiction is proper when a defendant moves to 

dismiss for lack of personal jurisdiction. Id. at 1015. 
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The first factor may be satisfied by “purposeful availment of the privilege of doing 

business in the forum; by purposeful direction of activities at the forum; or by some combination 

thereof.” Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206 

(9th Cir. 2006). A “purposeful availment” analysis is used in contract cases whereas “purposeful 

direction” analysis is applied in tort cases. Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 

577 (9th Cir. 2018) (citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 

2004)). In determining whether a contract creates sufficient contacts with the forum, courts look 

to “prior negotiations and contemplated future consequences, along with the terms of the contract 

and the parties’ actual course of dealing.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 

(1985). To determine whether activities directed at a forum are sufficient, courts require facts 

indicating the defendant: “(1) committed an intentional act, (2) expressly aimed at the forum state, 

(3) causing harm that the defendant knows is likely to be suffered in the forum state.” Yahoo!, 

433 F.3d at 1206 (internal quotation and citations omitted). 

The second factor of the test—that the claim must arise out of or relate to the defendant’s 

forum-related activities—is a “but for” test. Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 

F.3d 1082, 1088 (9th Cir. 2000). “Under this test, a defendant cannot be haled into court for 

activities unrelated to the cause of action in the absence of a showing of substantial and continuous 

contacts sufficient to establish general jurisdiction.” Shute v. Carnival Cruise Lines, 897 F.2d 

377, 385 (9th Cir. 1990) rev’d sub nom. on other grounds Carnival Cruise Lines, Inc. v. Shute, 

499 U.S. 585 (1991). “The ‘but for’ test preserves the requirement that there be some nexus 

between the cause of action and the defendant’s activities in the forum.” Id. 

The plaintiff bears the burden of satisfying the first two factors of the test. 

Schwarzenegger, 374 F.3d at 802. If the plaintiff fails to satisfy either of these factors, personal 

jurisdiction is not established in the forum state. Id. If the plaintiff succeeds in satisfying the first 

two factors, the burden then shifts to the defendant to “present a compelling case” that the exercise 

of jurisdiction would not be reasonable. Id. “Federal courts ordinarily follow state law in 

determining the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 571 U.S. 117, 

125 (2014).
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Where, as in this case, the motion to dismiss is based on written materials, rather than an 

evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction. 

Schwarzenegger, 374 F.3d at 800. A plaintiff makes a prima facie showing by producing 

admissible evidence which, if believed, would be sufficient to establish the existence of personal 

jurisdiction. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). A court must accept as true 

the uncontroverted allegations in the complaint and resolve conflicts between facts contained in 

the parties’ affidavits in the plaintiff’s favor. AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 

586, 588 (9th Cir. 1996).

DISCUSSION

I. PERSONAL JURISDICTION

HBML argues that there is no general or specific jurisdiction in California. The City and 

Successor Agency filed an opposition asserting that the court has specific jurisdiction over HBML 

arising from its direct contacts and its successor liability. Additionally, cross-claimants 

Swagelok/Whitney and Lozick filed separate oppositions arguing for specific jurisdiction 

premised on an alter ego theory. Therefore, I will only address specific jurisdiction and determine 

whether plaintiffs and cross-claimants have made out a prima facie case based on HBML’s direct 

contacts, successor liability, or an alter ego theory. 

A. HBML’s Direct Contact with California

In a single paragraph in its motion, HBML dismisses how plaintiffs could “possibly 

establish that HBML purposefully availed itself of California’s laws in connection with Claimants 

claims” because it did not cause the contamination itself or owned or operated the Property. Mot. 

at 15:1-12. Related to the second factor, it repeats the undisputed fact that SCM’s Marchant 

division did not become an indirect subsidiary of HBML prior to 1986, decades after Marchant 

ceased to own or operate on the Property. SAC ¶¶ 3, 22-24; see also Hempstead Decl. ¶ 6. 

In response, plaintiffs argue for specific jurisdiction premised on HBML’s nationwide 

tender offer to acquire SCM in 1985, use of the national financial press to accomplish this task, the 

eventual merger agreement with SCM that transferred their liability for the Property to HBML, a 

post-acquisition ad campaign that ran in states including California, and contemporaneous 
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documents showing HBML was in control of SCM activities when it was operating in California.

Plaintiffs successfully make out a prima facie case of specific personal jurisdiction based on this 

combination of HBML’s direct contacts with California and the contacts of its predecessor SCM. 

I analyze each of the factors that show specific jurisdiction below.

1. Purposeful Availment and Purposeful Direction

The first factor is satisfied “by purposeful availment of the privilege of doing business in 

the forum; by purposeful direction of activities at the forum; or by some combination 

thereof.” Yahoo!, 433 F.3d at 1206. Recently in a CERCLA liability case, the Ninth Circuit 

applied the purposeful direction test because the statute sounded in tort more so than contract. See 

Pakootas, 905 F.3d at 577 (“The Calder test plainly applies here. Claims for recovery of response 

costs and natural resource damages are “more akin to a tort claim than a contract claim.”). 

Here, HBML’s alleged involvement revolves around its transactional contacts as a 

successor to the allegedly tortious conduct of its predecessor. The first factor is not difficult for 

plaintiffs to establish given the evidence surrounding HBML’s hostile takeover of SCM, the 

subsequent liquidation of SCM, and SCM’s contacts imputed to HBML as its successor (which I 

address more comprehensively in the analysis of the second factor). SAC ¶ 23; Bookspan Decl. ¶ 

21. 

Plaintiffs produce evidence that HBML’s Financial Director and member of its Board of 

Directors in 1985, Brian Hellings, testified that he may have initiated discussion on the prospect of 

selling SCM’s typewriter business at an August 21, 1985 meeting preceding any press release that 

HBML would announce a tender offer. See Request for Judicial Notice (“Plaintiff RJN”) Ex. A at 

251:14-252:15 (Dkt. No. 115-2); Bookspan Decl. ¶¶ 11-14 (discussing HBML’s corporate raider 

reputation). When the takeover efforts began, HBML announced that the tender offer would be 

“advertised nationally by use of the national financial press and by the interstate mail.” Hamidi 

Decl. ¶ 6, Ex. B at 4-5 (HBML 7736-37). The national campaign involved numerous press 

releases to investors and was sent from “the Hanson Trust,” the name of HBML at the time,

between August 21 to October 10, 1985. See Hamidi Decl. ¶ 16, Ex. J (HBML 15572, -15574, -
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15576, -15580, -15581, -15585).2 

Plaintiffs provide evidence that the national press strategy continued after HBML made a 

final tender offer as well. See id. (HBML 8828-29, 8797, 15549, 15551-53). From 1986 to 1993, 

HBML ran advertisements in California, at times through the Los Angeles Times. See Bookspan 

Decl., Ex. C. The ads were for HBML products, provided background on HBML, and one 

announced that HBML was sponsoring a gala with a local public television station. Id. ¶ 12, Ex. I; 

¶ 32, Ex. C. From 1985 to 1996, HBML also periodically filed SEC documents involved in the 

tender offer and liquidation of SCM. See Hamidi Decl. ¶ 4, Ex. A at 83:17-84:18, 178:13-179:3. 

HBML’s reliance on Callaway Golf Corp. v. Royal Canadian Golf Ass'n, 125 F. Supp. 2d 

1194, 1198 (C.D. Cal. 2000) to discredit the materiality of press releases directed to California is 

distinguishable. In Callaway, the district court found that a nationwide press release was not 

sufficient to establish purposeful availment because “[n]one of the four U.S. media 

publications...[were] located in California, nor did defendant send press releases to any entity or 

person with a California address.” Callaway, 125 F. Supp. 2d at 1198–1200. Here, the press 

releases were nationwide, but there is the additional evidence of advertising directed towards 

California specifically. Given HBML’s direct involvement in the nationwide press coverage of its

tender offer, and subsequent ads in California, it purposefully availed itself of California. See 

Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911 (9th Cir. 1990) (finding 

that the decision to provide a nationwide press coverage permitted jurisdiction in Montana where 

the claims happened to be filed).

Finally, plaintiffs have provided evidence that both Lord Hanson and Sir Gordon White, 

who were partners managing HBML, lived part-time in California and conducted business there. 

See Bookspan ¶ 33. Lord Hanson, who was known to operate the business “wherever he [was],” 

according to HBML’s own 30(b)(6) designee, went so far as to maintain a secretary in California

and to meet with HBML executives there. Plaintiff RJN Ex. A at 237:17-238:16. HBML claims 

 

2 Plaintiffs also include evidence of correspondence dated May 30, 1986 between HM AngloAmerican Ltd., an HBML subsidiary that shared HBML’s London office space, and Security 

Pacific National Bank in Los Angeles, suggesting that at least part of the eventual financing for 

the tender offer of SCM came from a California bank. See Doty Decl. ¶ 15, Ex. K.
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that Lord Hanson and Sir Gordon White’s part-time residence in California is irrelevant, but it 

does not dispute the work alleged to have been conducted in California. These contacts are not 

irrelevant for purposes of the establishing personal jurisdiction. See Perkins v. Benguet Consol. 

Mining Co., 342 U.S. 437 (1952) (finding it would not violate due process to exercise jurisdiction 

over a foreign company when the president maintained an office in Ohio where he conducted 

personal and business tasks on behalf of the company). 

Plaintiffs have produced evidence and sufficiently alleged that HBML, primarily through 

its transactions in the 1980s, “performed some type of affirmative conduct which allows or 

promotes the transaction of business within the forum state.” Sinatra v. National Enquirer, 854 

F.2d 1191, 1195 (9th Cir. 1988). They sufficiently allege that HBML was involved in the 

acquisition of SCM, which took on the Property contamination liability of Marchant. 

2. Plaintiffs’ CERCLA Claims Arise Out of HBML Predecessor Contacts

The second factor is that “the claim must be one which arises out of or relates to” HBML’s 

contacts. Boschetto, 539 F.3d at 1016. There must be a “nexus between the cause of action and 

the defendant’s activities in the forum.” Shute, 897 F.2d at 385. Plaintiffs establish this factor 

through their successor liability theory. 

HBML’s acquisition of SCM is the but for cause of its alleged CERCLA liability, creating 

the nexus between its activities in California and the cause of action. Plaintiffs allege that the

industrial operations-based contamination occurred on the Property because of Marchant’s 

operations from approximately 1910 to 1958, SCM’s Marchant division after it acquired Marchant 

between 1958 to 1959, and Swagelok and Whitney from the mid-1960s to the late 1990s. SAC ¶¶ 

3-4. HBML’s involvement arises through the series of mergers and acquisitions transactions 

detailed above; namely, SCM’s consolidation of Marchant in 1958 and HBML’s consolidation of 

SCM “beginning in the mid-1980s.” SAC ¶ 22. Thus, plaintiffs rely on Shute to argue that 

HBML’s successor liability makes it responsible for the “but for” cause of the injury—Marchant 

and SCM’s contamination of the Property—and brings it within the “striking distance” allowed in 

the Ninth Circuit. 897 F.2d at 386. I find that plaintiffs’ claim arises out of HBML’s contacts 

with California to the extent HBML was plausibly the successor of SCM.
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a. Successor Liability Theory for Personal Jurisdiction

A court has personal jurisdiction over an alleged successor company, here HBML, if: (i) 

“the court would have had personal jurisdiction over the predecessor” and (ii) “the successor 

company effectively assumed the subject liabilities of the predecessor.” Lefkowtiz v. Scytl USA, 

No. 15-CV-05005-JSC, 2016 WL 537952, at *3 (N.D. Cal. Feb. 11, 2016) (internal quotation 

marks and citation omitted). The parties do not dispute that I would have personal jurisdiction 

over SCM, as the alleged predecessor of HBML’s successor liability, because it was a New York 

company that regularly conducted business in California before and after “acquiring the Marchant 

Corporation in a merger transaction.” FAC ¶ 3. So the question is whether HBML assumed 

SCM’s liabilities.

Under federal common law and California law, asset purchasers3are not liable as successor 

companies unless: (i) “The purchasing corporation expressly or impliedly agrees to assume the 

liability;” (ii) “The transaction amounts to a ‘de-facto’ consolidation or merger;” (iii) “The 

purchasing corporation is merely a continuation of the selling corporation;” or (iv) “The 

transaction was fraudulently entered into in order to escape liability.” Atchison, Topeka & Santa 

Fe Ry. Co. v. Brown & Bryant, Inc., 159 F.3d 358, 362–64 (9th Cir. 1997); see also Ray v. Alad 

Corp., 19 Cal.3d 22, 28 (Cal. 1977) (applying similar analysis under California law). Plaintiffs’ 

FAC and opposition explicitly invokes only the first basis for successor liability. FAC ¶¶ 37, 51; 

Emeryville Oppo. at 13:21-24. 

Plaintiffs state that HBML “explicitly and implicitly adopted as its own, assumed, and 

inherited Marchant’s environmental liability at the Property...and [SCM’s] liabilities and 

contacts.” SAC ¶ 37; CenterPoint Energy, Inc. v. Superior Court, 157 Cal.App.4th 1101, 1120 

(Cal. Ct. App. 2007) (applying the first exception to successor liability). Their evidence in support 

of successor liability includes the same events that it cites for purposeful availment and purposeful 

direction—the tender offer for SCM, the nationwide press releases it used to acquire SCM, and 

 

3 As an initial requirement, successor liability according to California law “requires the purchase 

of assets, not merely the purchase of stock.” Sunnyside Dev. Co., LLC v. Opsys Ltd., No. 05-cv0553-MHP, 2007 WL 2462142, at *6 (N.D. Cal. Aug. 29, 2007). There is no dispute that the 

acquisition of SCM involved assets. See Hempstead Decl. ¶ 7 (“Following the acquisition, in 

1986, SCM’s assets and liabilities were liquidated...”).
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ads directed to California. 

Plaintiffs’ contend that HBML was essentially the ultimate parent company that dominated 

and controlled the pertinent events involving SCM. They emphasize that there was a January 

1986 merger agreement from SCM to HSCM Industries Inc. and Hanson Trust PLC, which was

sent to the attention of Sir Gordon White. Hamidi Decl. ¶ 7, Ex. C. The second paragraph of the 

agreement, Section 1, states that “Hanson,” defined in the letter as collectively HSCM Industries 

Inc., Hanson Holdings Netherlands B.V. and Hanson Trust PLC, “agrees to effect as promptly as 

practicable a merger with” SCM. Id. at 1 (HBML 24750). There is no dispute Hanson Trust PLC 

is the same entity as HBML. Section 12 then declares the contract to be binding on the parties in 

the letter, again including HBML. Id. at 6. (HBML 24755) (“This contract shall be binding upon 

and inure to the benefit of the parties hereto, [and] the persons and entities referred to herein.”). 

Plaintiffs observe that the letter does not include Hanson Industries, the United States counterpart

to HBML. 

Moreover, they point to the testimony of an HBML Rule 30(b)(6) witness, Graham 

Dransfield, who was an HBML employee in the legal department starting in 1982, former Legal 

Director of HBML from 1993 to 2003, and Legal Director of Hanson Limited from 2003 to 2009. 

See Dransfield Decl. ¶ 1. Dransfield testified that Hanson Industries (a division of an HBML 

subsidiary named Tillotson Commercial Motor Company in the United States) was not involved in 

making the tender offer for SCM. See Doty Decl. ¶ 7 Ex. D at 381:2-6 (“As I see it [the merger 

agreement was] signed by the people who were making the tender offer.”). When asked about 

HSCM Industries Inc. and Hanson Building Holdings Netherlands B.V., Dransfield did not know 

if they even had the resources (employees, bank accounts, phone and fax numbers) to perform the 

merger with SCM independent of HBML. Id., Ex. D at 378:11-380:24. All of these facts, along 

with the press releases and ads from HBML during the time of the transactions, give rise to a 

prima facie showing of successor liability. 

HBML “does not dispute that the company formerly known as SCM was ultimately 

merged into HM Holdings,” another subsidiary of HBML. Mot. to Dismiss at 4 n.3; see also

Hempstead Decl. ¶¶ 5-15 (explaining the various corporate transactions and noting that “the 
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surviving company from the above-described mergers [referring to the twenty fan companies after 

the 1986 SCM corporate restructuring] ultimately was merged into another U.S. company and an 

indirect subsidiary of HBML, known as HM Holdings, Inc.”). But it argues that its United States 

subsidiaries were in control. HBML contends that management of its United States businesses 

reported directly to Hanson Industries, and that as a result HBML is not the successor to SCM. 

In 1986, SCM was acquired by the indirect subsidiaries of HBML, Hanson Holdings 

Netherlands B.V. and HSCM Industries Inc. See Hempstead Decl. ¶ 6; Swagelok Oppo., Berle 

Decl. Ex. D (HBML 604-607); Reck Decl. Ex. C at 68:5-11; 69:2-6. HBML points to its own 

1986 Chronology of the Acquisition and Restructuring of SCM, which states that on March 31, 

1986 the merger occurred, “resulting in ownership by HSCM Industries of 8,040,000 shares of 

SCM (80.4%) and by [Hanson Holdings Netherlands B.V.] of 1,960,000 shares (19.6%) of SCM.”

Berle Decl. Ex. D (HBML 605).

But the observation that the actual purchase was through subsidiaries or that they reported 

to Hanson Industries as entirely separate from HBML is unpersuasive given evidence that HBML

(Hanson Trust PLC at the time) was in control. In the 1986 HBML annual report, Sir Gordon 

White explained the two entities of HBML and Hanson Industries as “constituting a single 

corporate entity and sharing a common business strategy,” though operating as two separate 

companies. Hamidi Decl., ¶ 17, Ex. K (HBML 6517-6525); Doty Decl., ¶ 14, Ex. J at 17 (HBML 

15572). 

Consistent with this outlook, on August 22, 1985, meeting minutes from HBML in London 

show that its directors determined a cash tender offer announcement was necessary following a 

rise in the share prices the day before. See Doty Decl. Ex. L at 1. The minutes also “resolved” 

that the announcement “on behalf of the Company,” HBML, was approved and a committee of the 

board consisting of HBML directors were appointed to “facilitate the proposed cash tender offer.” 

Id. HSCM Industries was formed by HBML in 1985 for the purpose of purchasing SCM and did 

not own other asserts or conduct other activities. See Berle Decl. Ex. A at 65:4-17; Ex. G (HBML 

7462). Hanson Netherlands spent money for the acquisition it received from loans directly by 

HBML. See Berle Decl., Ex. G (HBML 7462-63); Ex. E (HBML 25531). Again, this is 
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consistent with Sir Gordon White’s single corporate entity statement, and the meeting minutes of 

directors discussing HBML’s intent to “facilitate the proposed cash tender offer.” Doty Decl. Ex. 

L at 1. 

Through the tender offer and acquisition process, HBML then made clear that “as soon as 

practicable, Hanson Trust intends to seek to influence the management of the Company, to seek 

majority representation on the Company’s Board of Directors and to seek to effect a business 

combination between the Company and Hanson Trust or an affiliate of Hanson Trust...” Berle 

Decl., Ex. G (HBML 7450, 7469). HBML’s involvement in the open market transactions for 

SCM obligated it to file a Schedule 13D with the SEC as a result of its beneficial ownership of 

more than 5% of the voting class. See Request for Judicial Notice (“Swagelok RJN”) Ex. TT at 

18495 (Dkt. No. 113-5). Moreover, HBML was part of the group Schedule 13D along with its 

subsidiaries HSCM Industries, Hanson Netherlands, and HMAC Investments Inc., which would 

not have been filed but for these entities acting together for the purpose of acquiring SCM. See 17 

C.F.R. 240.13d-5(b)(1) (“When two or more persons agree to act together for the purpose of 

acquiring, holding, voting or disposing of equity securities of an issuer, the group formed thereby 

shall be deemed to have acquired beneficial ownership...”). 

HBML’s attempt in this litigation to separate itself from the tender offer and acquisition of 

SCM is also unsuccessful, at least at this stage, in light of certain holes in Hempstead’s testimony. 

He states that he was an Associate Director of HBML from 1990 to 1996, but that this was only an 

“honorary title” with his only role being “to sign certain disclosures for the company to be filed 

with U.S. regulatory authorities.” Hempstead Decl. ¶ 3. From 1976 to 1978, and then from 1982 

through 1996, he says that he was employed by Hanson Industries. Id. ¶ 1. Yet Hempstead is the 

signatory for HBML and Hanson Netherlands on the 1986 merger agreement, which did not 

include any mention of Hanson Industries. See Hamidi Decl., Ex. C (HBML 24756). Hanson 

Industries, according to plaintiffs, is a division of Tillotson Commercial Motors, but the 

company’s director’s report for 1985 to 1987 does not mention any SCM-related activities. See

Doty Decl. ¶ 18, Ex. N at 1. 

HBML attempts to push successor liability onto another entity, Millennium Chemicals, 
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Inc. (“Millennium”). It asserts that after the acquisition in 1986, SCM’s assets and liabilities were 

restructured by Hanson Industries and its general counsel. Hempstead Decl. ¶¶ 5-15. After the 

SCM businesses were distributed to the fan companies, SCM was merged into HSCM-20. Id. ¶¶ 

7, 13. HSCM-20 merged again into a direct parent company, HSCM Holdings, Inc., and the 

surviving corporation was renamed SCM once again. Hempstead Decl. ¶ 14, Ex. C. SCM then

merged into another HBML subsidiary, HM Holdings, Inc. in October 1988. Id. at ¶ 15. Finally, 

HBML argues that in 1996, Millennium, “a newly formed Delaware company,” acquired HM 

Holdings, Inc. as part of a “demerger” and became the successor. Id. ¶¶ 26-28.4 Millennium 

merged into Lyondell Chemical Co. in 2004, which filed for bankruptcy in 2009. See Request for 

Judicial Notice (“HBML RJN”) Ex. D at 20 (Dkt. No. 82-2).

HBML’s reliance on the spinoff of liabilities onto Millennium in 1988 for purposes of 

personal jurisdiction is irrelevant. It does not refute or negate evidence of HBML’s earlier control 

of the SCM acquisition or its ownership of SCM while SCM allegedly contributed to the 

contamination of the Property.5 For these reasons, I find that plaintiffs’ successor liability theory

meets the second factor of personal jurisdiction.

3. Exercising Jurisdiction Over HBML Would be Reasonable

Once plaintiffs satisfy the first two factors of the specific personal jurisdiction test, the 

burden shifts to the defendant, HBML, to show why jurisdiction would not be reasonable. 

Schwarzenegger, 374 F.3d at 802. The Ninth Circuit examines seven factors to determine whether 

jurisdiction is reasonable: (i) “existence of an alternative forum;” (ii) “burden on the defendant;” 

(iii) “convenience and effectiveness of relief for the plaintiff;” (iv) “most efficient judicial 

resolution of the dispute;” (v) “conflict with sovereignty of the defendant’s state;” (vi) “extent of 

 

4 Hempstead apparently left Hanson Industries to join Millennium as its Senior Vice President, 

Secretary, and General Counsel simultaneously. Hempstead Decl. ¶ 1.

5 Lozick’s opposition disputes the lack of jurisdictional discovery provided, particularly related to 

documents in Millennium’s custody that it asserts HBML has control over and was obligated to 

produce. Lozick Oppo. at 14, 17-18. Plaintiffs have provided sufficient evidence of successor 

liability, for jurisdictional purposes, making these concerns perhaps less significant. If discovery 

disputes persist, Lozick should follow the procedures outlined in my Civil Standing Order for 

discovery disputes.
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purposeful interjection;” and (vii) “the forum state’s interest in the suit.” Brand v. Menlove 

Dodge, 796 F.2d 1070, 1075 (9th Cir. 1986). HBML asserts that the second and sixth factors 

make jurisdiction unreasonable. Its arguments are unpersuasive. 

HBML argues that it is overly burdensome to require it, a London-based corporation, to 

litigate in California. It highlights that three of four depositions have already taken place in 

London, relevant employees are outside the United States, those same relevant employees may not 

be able to participate given health issues, they would not be able to travel to California to testify in 

defense of HBML, and HBML’s document repository is located outside the United States. But a

similar burden would apply to plaintiffs and cross-claimants if they had to litigate in the United 

Kingdom. Moreover, as the Ninth Circuit stated in Sinatra in 1988, “modern advances in 

communications and transportation have significantly reduced the burden of litigating in another 

country.” 854 F.2d 1191, 1199. HBML’s witnesses may testify by video deposition if they are 

unable to travel. It would not be overly burdensome to hale HBML into federal court in 

California.

HBML also argues that any interjection it has made in California was not on purpose. It

says that it has not operated any business in California, has no facilities in California, and has had 

no contacts of any kind—including subsidiaries—since 2005. Rogers Decl. ¶¶ 3-4. I disposed of 

this argument above and found that HBML purposefully directed its activities toward California 

when it acquired SCM, and that SCM’s conduct on the Property could be imputed to HBML 

through a successor liability theory. See Corp. Inv. Bus. Brokers v. Melcher, 824 F.2d 786, 790 

(9th Cir. 1987) (“Ninth Circuit cases give the purposeful interjectment factor no weight once it is 

shown that the defendant purposefully directed its activities to the forum state.”). 

I do not find that HBML’s burden to litigate in this forum, nor its extent of purposeful 

interjection, weighs against the otherwise reasonable exercise of jurisdiction in this forum. 

Accordingly, plaintiffs have made a prima facie showing of personal jurisdiction. 

B. Alter Ego Theory

Given my findings on personal jurisdiction, it is not necessary to address a second avenue 

for personal jurisdiction that relies on cross-claimants’ theory, joined by plaintiffs, that HBML 
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(including Hanson PLC, Hanson Trust PLC, and Hanson Limited) and Hanson entities in the 

United States are alter egos. I will do so, however, as it provides an alternative reason to assert

jurisdiction over HBML. 

California recognizes a prima facie showing of an alter ego liability theory where two 

conditions are met: (i) “there is such a unity of interest and ownership that the individuality, or 

separateness, of the said person and corporation has ceased;” and (ii) “adherence to the fiction of 

the separate existence of the corporation would...sanction a fraud or promote injustice.” In re 

Schwarzkopf, 626 F.3d 1032, 1038 (9th Cir. 2010).6

Many factors may suggest an alter ego relationship: (i) “commingling of funds and other 

assets,” (ii) “identical equitable ownership in the two entities,” (iii) “failure to maintain minutes or 

adequate corporate records, and the confusion of the records of the separate entities,” (iv) “use of 

the same office or business location; the employment of the same employees and/or attorney,” (v)

“identification of the directors and officers of the two entities in the responsible supervision and 

management,” (vi) “sole ownership of all of the stock in a corporation by one individual or the 

members of a family,” (vii) “failure to adequately capitalize a corporation,” (viii) “failure to 

maintain arm’s length relationships among related entities,” (ix) “use of a corporation as a mere 

shell, instrumentality or conduit for a single venture or the business of an individual or another 

corporation,” and (x) “manipulation of assets and liabilities between entities so as to concentrate 

the assets in one and the liabilities in another.” Associated Vendors, Inc. v. Oakland Meat Co., 

Inc., 26 Cal. Rptr. 806, 813–15 (1962) (internal citations omitted). Because no one factor governs

the analysis, courts “should look at all the circumstances to determine whether the alter ego 

doctrine applies.” Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1067 (N.D. Cal. 2007) 

(citing Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 539 (2000)). 

 

6 HBML and Swagelok/Whitney dispute as an initial matter whether Delaware or California law 

applies to the forthcoming analysis of an alter ego theory for purposes of personal jurisdiction. 

The Ninth Circuit has clarified that where “there is no applicable federal statute governing 

personal jurisdiction, the law of the state in which the district court sits applies.” Harris Rutsky & 

Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). Thus, I analyze the 

issues under California law.
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1. There is a Unity of Interest and Ownership

a. Acquisition Conduct

Swagelok discusses several pieces of evidence both before and after the acquisition of 

SCM to demonstrate a unity of interests between HBML and its subsidiaries. To start, it is 

undisputed that HBML incorporated the twenty entities, HSCM-1 through HSCM-20, in 

anticipation of the takeover and that it organized these entities as subsidiaries of HM AngloAmerican Ltd. (“HM Anglo”), another wholly owned subsidiary of HBML sharing its executive 

offices with HBML in London, England. See Berle Decl., Ex. I (HBML 15566-67); Ex. A 49:4-

20. 

On August 21, 1985, a press release was sent from HBML stating that “Hanson Trust PLC 

(either directly or through one or more of its affiliates) intends to commence a tender offer for any 

and all outstanding shares of common stock of SCM Corporation.” Berle Decl. Ex. G (HBML 

7468). HBML notes that the letter began with “Sir Gordon White, Chairman of Hanson Trust 

PLC’s North American interests, announced today...” Id. It also asserts that London Stock 

Exchange rules required HBML to inform its own shareholders and the market generally of the 

transaction. See Notice of Foreign Law, LSE Listing Rules (Jan. 1999) §§ 10.1(a), 10.37 

(requiring “an explanatory circular must be dispatched to the company’s shareholders” for “a 

transaction by any subsidiary undertaking of the listed company.”). This does not make the initial 

representation that HBML was the entity “intend[ing] to commence a tender offer” any less 

significant. Berle Decl. Ex. G (HBML 7468).

HBML issued several other press releases taking apparent credit for the SCM takeover as 

well. See Berle Decl., Ex. S (announcing “SCM is now part of Hanson Trust,” “Hanson Gains 

Control of SCM,” “Hanson Extends SCM Offer,” “Hanson to Purchase SCM shares,” and 

“Hanson Wins SCM Appeal.”). HBML does not respond to the particular statements in the 

releases, except to repeat that they were sent by HBML’s United States entities or by Sir Gordon 

White on behalf of North American interests. See Reply to Swagelok Oppo. at 5 n.10. The 

communications still tend to show that HBML shared a unity of interest with the subsidiary 

vehicles used to acquire SCM.
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In addition, Swagelok and Lozick present the HBML directors meeting minutes from 

August 22, 1985, which I discussed above in analyzing the successor liability theory. The meeting 

minutes show that HBML considered the tender offer announcement “on behalf of the Company” 

to “facilitate the proposed cash tender offer” and that one director discussed “the background to 

the Company’s interest in SCM Corporation.” Doty Decl. Ex. L at 1. HBML argues that the

board was required to approve the transaction by the London Stock Exchange because it was 

considered a material transaction by an indirect subsidiary. See Notice of Foreign Law, LSE 

Listing Rules (Jan. 1999) §§ 10.1(a), 10.37. However, as with the SEC filings, those obligations 

do not diminish the evidence of HBML’s involvement and control over the effort to acquire and 

liquidate SCM. 

Next, Swagelok contends that the August 26, 1985 tender offer was made by HBML 

through two wholly owned subsidiaries which it controlled, HSCM Industries, Inc. and Hanson 

Holdings Netherlands B.V. See Berle Decl., Ex. G (HBML 7462-63). Hanson Netherlands 

received the money for the acquisition from loans directly by HBML. Id. at Ex. E (HBML 

25531). In the tender offer, HBML made clear that “as soon as practicable, Hanson Trust intends 

to seek to influence the management of the Company, to seek majority representation on the 

Company’s Board of Directors and to seek to effect a business combination between the Company 

and Hanson Trust or an affiliate of Hanson Trust...” Id. at Ex. G (HBML 7450, 7469). HBML’s 

response to this evidence is that the tender offer was made by HSCM Industries Inc. and Hanson 

Holdings Netherlands B.V. as indirect wholly owned subsidiaries of HBML. Id. (HBML 7448, 

7450). The tender offer, press releases, and meeting minutes evidence suggest that HBML was the 

power behind the acquisition of SCM, which was accomplished through its control of the 

subsidiaries. 

b. Lawsuits Reflecting HBML Control Over the SCM Acquisition

Swagelok also asserts that litigation filed by HBML concerning SCM shows its control 

over the acquisition. In August 1985, HBML filed two lawsuits against SCM for attempting to 

utilize the New York Securities Takeover Disclosure Act to prevent the takeover. See Berle Decl.,

Ex. J; Ex. K; Ex. V. Swagelok argues that HBML used the court system to its benefit and in the 
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process claimed that it was the real party in interest. This is additional evidence of HBML’s

control over the acquisition, according to Swagelok.

HBML disagrees. It contends that its role in the litigation was “merely incidental to its 

status as the beneficial owner” and that the legal fees were paid by Hanson Industries and 

managed by George Hempstead, not HBML counsel. See Hempstead Dep. Tr. 81:19-81:23. As 

noted earlier, it is not clear that the fact of Hempstead’s management absolves HBML of control: 

from 1982 to 1996, which includes the time of the lawsuits, he signed the 1986 merger agreement 

with SCM on behalf of HBML and Hanson Netherlands. See Hamidi Decl., Ex. C (HBML 

24756). Hempstead additionally served as a Director of HSCM Industries and as Vice President 

of all the fan companies when he signed the consent to liquidate HSCM Industries and SCM in 

1986. See Berle Decl., Ex. P-Q. HBML’s participation in the litigation to acquire SCM tends to 

support a unity of interest with its subsidiaries, regardless of Hempstead’s official role. 

c. Undercapitalizing HBML-20

Swagelok next argues that the HBML-20 entity, formed to house the Marchant liability, 

was not adequately capitalized because HBML did not conduct any valuation of the assets and 

liabilities deposited into HSCM-20. The Ninth Circuit has found that inadequate capitalization 

alone can serve as a basis for alter ego liability against a parent corporation. Slottow v. Am. Cas. 

Co. of Reading, Pa., 10 F.3d 1355, 1360 (9th Cir. 1993) (“[I]nadequate capitalization of a 

subsidiary may alone be a basis for holding the parent corporation liable for acts of the 

subsidiary.”).

During liquidation, SCM’s operating businesses were distributed to the fan companies 

HSCM-1 through HSCM-19. See Berle Decl., Ex. N, Hempstead Decl. ¶¶ 11-12. SCM was left 

with “residual assets and contingent/legacy liabilities associated with [SCM’s] former defunct 

businesses” that were merged into HSCM-20. Id. ¶ 11; see also Ex. X (Memorandum of 

Distribution in Liquidation). None of the businesses distributed into HSCM-20 were operating 

businesses. Id., Ex. N; Ex. B at 228:17-230:11, 238:2-10. 

HBML contends it did value the HSCM-20 assets and liabilities in a balance sheet. See

Berle Decl. Ex. AA at HBML0026899 (showing assets equal to liabilities with Kalamazoo 
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Reserves at $0). The valuation was performed by Hellings and other HBML employees. See

Reck Decl. Ex. E (Hempstead Dep. Tr.) at 418:13-15. Hempstead testified generally that he 

believed HSCM-20 was properly capitalized in 1986 because they “were not aware of any 

significant pending liabilities or contingent liabilities at the time.” Id. at 401:23-402:18. But 

when he was asked if he knew the residual assets and contingent liabilities were valued at $150 

million (the amount of debt allocated to HSCM-20) Hempstead stated he did not know. Id. at 

299:2-9. Dransfield also testified, again as HBML’s 30(b)(6) witness, that he was not aware that

the assets or liabilities deposited into HSCM-20 were valued to determine adequate capitalization. 

Berle Decl., Ex. C at 219:12-221:9, 281:16-292:21. 

To show that HSCM-20 was undercapitalized, Swagelok focuses on Marchant’s liabilities 

and liabilities from the Kalamazoo Mill, an entity distributed to HSCM-20 that was not valued in 

the acquisition. It had been part of the former Allied Paper Division of SCM. The Kalamazoo 

Mill, also referred to as the Kalamazoo Site by the parties, was placed on the Environmental 

Protection Agency National Priorities List in 1989 as one of the most polluted areas in the country.

See Swagelok RJN Ex. UU at 1-2 (discussing the Kalamazoo River Cleanup in 2002 and Allied 

Paper’s operations there since 1925) (Dkt. No. 113-5); Berle Decl., Ex. BB (letter from Allied 

Paper to the Michigan Department of Natural Resources regarding PCB levels tested in 

Kalamazoo River). The SCM acquisition occurred in 1986, three years prior. 

Swagelok suggests that the Allied Paper Division of SCM would have known, or had 

reason to know, about the contamination at the Kalamazoo Site in 1986 during the time of the 

merger. Prior to the SCM acquisition in 1986, HBML also acknowledged in a Form 20-F that 

SCM was in negotiations with “pollution control agencies” on steps to be taken for compliance 

with applicable regulations. Berle Decl., Ex. M (HBML 8514); Ex. B, Hempstead Dep. Tr. at 

235:10-237:5. 

In its reply, HBML re-asserts that liabilities like the Marchant and Kalamazoo Site were 

not part of the valuation because they were unknown at the time. This is consistent with 

Dransfield’s 30(b)(6) testimony on September 14, 2018, explaining why the entity was not valued. 

See Berle Decl., Ex. C at 220:11-12 (“...they wouldn’t put a value to it. And you can’t put a value 
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to things that are unknown.”). But it leaves unrebutted the likelihood that SCM, and HBML 

through the acquisition process, would have known about the significant pollution at the 

Kalamazoo Site. 

HBML also argues as a legal matter that it did not have to include an assessment of the 

Marchant or Kalamazoo Site liabilities for the capitalization of HSCM-20 when there was only a 

claim for liability rather than a judgment. See In re Packaged Seafood Prods. Antitrust Litig., 

2018 U.S. Dist. LEXIS 151394, at *102 (S.D. Cal. 2018) (finding the relevant inquiry for 

capitalization was “whether [defendant’s capital was sufficient to operate its normal business.”); 

see also Sheppard v. River Valley Fitness One, L.P., No. CIV.00-111-M, 2002 WL 197976, at *12 

(D.N.H. Jan. 24, 2002) (“the proper measure of the sufficiency of a corporate entity’s 

capitalization is not whether it can pay a potential judgment in a lawsuit but, rather, whether it had 

sufficient assets to meet the obligations incurred by conducting ordinary business...”). However, 

California law still concerns itself with “prospective liabilities” and inequitable “risk of loss” to 

shareholders. Remme v. Herzog, 222 Cal. App. 2d 863, 868 (Ct. App. 1963) (“shareholders should 

in good faith put at the risk of the business [unencumbered] capital reasonably adequate for its 

prospective liabilities. If the capital is illusory or trifling compared with the business to be done 

and the risks of loss, this is a ground for denying the separate entity privilege.”). If the liabilities 

from Marchant, the Kalamazoo Site, and other entities were known but not yet incurred, adequate 

capitalization requirements suggest at least that a valuation occur to consider those risks and 

prospective liabilities. 

HBML argues that because HBML-20 had no active operations it required no assets, and 

that in any event it had assets such as a lease of a building at 299 Park Avenue and others. See

Reck Decl. Ex. K (HBML 627-29) (listing assets in HSCM-20). But Swagelok disputes 

Hempstead’s account that the proceeds of selling two properties were received by HSCM-20 and 

that, if they were, they would be enough to capitalize it. See Berle Decl., Ex. B at 229:15-231:23. 

On this record it appears that HSCM-20 did not have its assets or liabilities valued during the 

SCM transactions, even while HBML had reason to know the fan company faced prospective 

liabilities from its SCM distributions. At a minimum, there remains a question whether HSCM-20 
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was undercapitalized.

d. Sharing the Same Officers and Directors in Subsidiaries

Finally, Swagelok discusses HBML’s use of the same officers for the restructuring and 

liquidation of SCM as another factor weighing in favor of alter ego liability. See Slottow, 10 F.3d 

at 1360 (finding a unity of interests where, in part, a parent company owned nearly all shares of a 

subsidiary, and all the subsidiary’s officers were officers of the parent company). In Slottow, the 

Ninth Circuit found relevant that the companies used the same business location, same lawyers, 

failed to make arms-length transactions, and the parent represented it would cover the subsidiary’s 

debts. Id. In this case, Swagelok contends Hempstead served as an officer or director on both 

sides of several transactions, including May 7, 1986 liquidations of SCM and HSCM Industries 

Inc., memorandums of distribution in liquidation between SCM and HSCM-20, a 1988 merger 

agreement between SCM and HM Holdings Inc., and a 1986 subscription agreement. See Berle

Decl., Exs. P-R, X, CC, PP. 

As HBML asserts, this is insufficient to weigh in favor of a unity of interest or ownership.

Swagelok does not identify any directors of HBML in 1986 who were concurrently directors of 

HSCM-20. See Berle Decl., Ex. NN at 710 (HBML 10818). According to HBML, of all twentysix directors, associate directors, and officers of HBML and HSCM-20, there was only one in 

common between the two companies. See Dransfield Dep. Tr. at 5-9, 203:2-204:3, 204:21-

205:20. That said, sufficient evidence supports a finding that a unity of interest and ownership 

exists.

2. Injustice Will Result if the Corporate Veil is Not Pierced

The second requirement for alter ego liability is that there must be “an inequitable result if 

the acts in question are treated as those of the corporation alone.” Wehlage v. EmpRes Healthcare, 

Inc., 791 F. Supp. 2d 774, 782 (N.D. Cal. 2011) (internal citation omitted). Plaintiffs are required 

to “plead facts sufficient to demonstrate that conduct amounting to bad faith makes it inequitable 

for the corporate owner to hide behind the corporate form.” Prod. & Ventures Int’l v. Axus 

Stationary (Shanghai) Ltd., No. 16-CV-00669-YGR, 2017 WL 201703, at *8 (N.D. Cal. Jan. 18, 

2017) (internal quotation marks and citation omitted). 
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Swagelok repeats its earlier assertions that HBML intentionally targeted SCM for a hostile 

takeover and liquidation, was directing the shell game involving Marchant’s environmental 

liability, and acquired a company that retained the alleged environmental liabilities while 

operating on the Property. See Berle Decl., Ex. N ¶¶ 11-12. Swagelok’s allegations are consistent 

with plaintiffs’ in terms of demonstrating HBML’s control over the tender offer, acquisition, 

liquidation of SCM, and the post-acquisition restructuring of its liabilities. Because I found that 

plaintiffs stated a claim for successor liability against HBML, similar considerations would lead to 

an inequitable result if the corporate veil were not pierced. Alter ego liability is a second, 

alternative reason to find jurisdiction over HBML.

II. REQUESTS FOR JUDICIAL NOTICE AND EVIDENTIARY DISPUTES

HBML, plaintiffs, and Swagelok filed requests for judicial notice. HBML then filed 

separate oppositions to plaintiffs’ and Swagelok’s requests. Additionally, Swagelok filed 

evidentiary objections to HBML’s Hempstead declaration in support of its motion, HBML moved 

to exclude Dr. Bookspan’s testimony in its reply, and objects to specific paragraphs and exhibits in 

the Berle, Doty, and Hamidi declarations. My findings on these issues are explained below. 

A. Requests for Judicial Notice

1. HBML Request for Judicial Notice

HBML requests judicial notice of documents in support of its motion, including a 

certificate of merger of Millennium Holdings Inc. to MHI 2, LLC (Exhibit A), a Form 8-K filed 

by Lyondell Chemical Co. in 2004 (Exhibit B), excerpts from Lyondell’s Form 10-K filed in 2007 

(Exhibit C), excerpts from Millennium’s voluntary petitions for Chapter 11 bankruptcy (Exhibit 

D), an Order in the 2007 case Walter Van Doren v. Coe Press Equipment Corp., Case No. 2:06-

cv-02835-LDD (Exhibit E), and excerpts from the Phase I site assessment the City prepared for 

Powell Street properties (Exhibit F). See HBML RJN at 1-2.

Courts may judicially notice documents in the public record to show the document was 

filed or that a proceeding occurred. See United Tactical Sys., LLC v. Real Action Paintball, Inc., 

2017 WL 713135, at *6 (N.D. Cal. Feb. 23, 2017) (taking judicial notice of documents that were 

filed with the secretary of state). The ability to take judicial notice of court filings extends to 
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documents filed in federal bankruptcy court actions as well. See Richard & Sheila J. McKnight 

2000 Family Tr. v. Barkett, 675 F. App’x 715, 716 (9th Cir. 2017) (taking judicial notice of 

federal bankruptcy and district court documents). Other court decisions are also susceptible to 

judicial notice, as are records that are generally publicly available. See, e.g., Lee v. City of Los 

Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“A court may take judicial notice of ‘matters of public 

record’”).

Exhibits A through F are appropriate for judicial notice because they are publicly available 

filed documents, and their existence cannot be reasonably questioned. Accordingly, I GRANT 

HBML’s request for judicial notice of Exhibits A through F.

2. Plaintiffs Request for Judicial Notice

Plaintiffs request judicial notice of documents like a transcript of Hellings’s deposition in a 

1985 case between HBML and SCM in the United States District Court for the Southern District 

of California (Exhibit A) and a copy of HBML’s Memorandum of Contentions of Fact and Law 

filed in another case in the United States District Court for the Central District of California 

(Exhibit B). See Plaintiff RJN at 1. Judicial notice is possible for records filed in another case. 

See First Mercury Ins. Co. v. Kinsale Ins. Co., 2018 WL 3995836 at n.2. (N.D. Cal. Aug. 21, 

2018) (judicially noticing deposition transcripts and filed documents in the case). It is appropriate 

to notice that the deposition occurred and was filed in another case, but I do not adopt Hellings’s

underlying testimony as undisputed fact. Because I did not need to rely on Exhibit B in rendering 

a decision, I decline to take judicial notice of it. I GRANT plaintiffs’ request to take judicial 

notice of Exhibit A and DENY AS MOOT judicial notice of Exhibit B.

3. Swagelok Request for Judicial Notice

Swagelok/Whitney requests judicial notice of Exhibits SS to EEE in its compendium of 

evidence in support of its opposition to the motion to dismiss. Swagelok RJN at 2, 6. Of these 

requests for judicial notice, I relied on Exhibits TT and UU in this Order, which are a beneficial 

ownership disclosure statute in effect in 1985 when HBML filed a Schedule 13D and an EPA 

2002 Fact Sheet regarding the Kalamazoo River Cleanup and the EPA 1993 Fact Sheet regarding

the proposed addition of sites to the National Priorities List, respectively. The existence of these 
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documents are judicially noticeable as publicly available documents whose existence cannot 

reasonably be questioned. Therefore, I GRANT the request to judicially notice Exhibits TT and 

UU, and the remaining exhibits I decline to judicially notice at this time are DENIED AS MOOT.

B. Evidentiary Objections

1. Swagelok and Lozick Evidentiary Objections

Swagelok brings nine evidentiary objections to portions of HBML’s Hempstead 

declaration. See Evidentiary Objections (Dkt. No. 113-6). All of Swagelok’s objections are based 

on a lack of personal knowledge or lack of foundation under Federal Rule of Evidence 602, and 

inadmissible hearsay grounds under Rules 801(c) and 802. Some objections are lodged on 

relevance grounds under Rule 401. Lozick also challenges the relevance of two prior lawsuits 

involving HBML. See Lozick Oppo. at 18-19. Because I find there is personal jurisdiction in 

favor of plaintiffs, Swagelok, and Lozick, these various objections are moot at this stage. 

2. HBML Evidentiary Objections

HBML seeks rulings on evidentiary objections that it leveled in its reply to plaintiffs and 

Swagelok’s oppositions, as well as at the hearing on their motion to dismiss. HBML first seeks to

exclude the testimony of plaintiffs’ historian, Dr. Bookspan. See Reply to Emeryville at 13-15 

(Dkt. No. 126). HBML argues that it is inadmissible under Rule 702, which allows for testimony 

based on sufficient facts, the product of reliable methods, and which applies those reliable 

methods to the facts. Specifically, HBML contends that Dr. Bookspan is unqualified to offer her 

opinion that HBML and its United States counterpart Hanson Industries were indistinguishable 

entities in the way they were financed and managed. See Bookspan Decl. ¶ 40. It also argues that 

her entire testimony on the content of the materials referenced in her declaration is not helpful 

because of her lack of experience in corporate legal structures or finance; and that her testimony 

on HBML’s California contacts should be excluded as irrelevant. Id. ¶¶ 31-39. 

I do not agree that Bookspan lacks the expertise to offer an opinion on HBML’s activities 

from the 1980s to 2000 that are relevant to the alleged environmental contamination. Bookspan 

Decl. ¶ 2 (“I have 34 years of experience in conducting corporate history research for clients 

involved in environmental cleanup liability issues as well as for internal corporate purposes.”). 
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Her testimony is relevant and her interpretation of the contents of historical materials referenced in 

her declaration would be helpful to a factfinder. Therefore, HBML’s objection to Bookspan’s 

declaration is OVERRULED. 

Next, HBML objects to exhibits attached to the Doty declaration, portions of the Hamidi 

declaration, and the entire Hellings’s deposition transcript. Starting with the Hamidi declaration, 

HBML objects to paragraphs 8, 9, and 11 on hearsay grounds and the best evidence rule with 

respect to how it summarizes Hempstead’s testimony. I do not rely on Hamidi’s declaration for its 

statements on Hempstead’s testimony, making this objection moot. 

HBML then objects to Hellings’s deposition on grounds that it is hearsay, an unsigned 

copy of the transcript, and because plaintiffs apparently failed to produce it in advance of the Rule 

30(b)(6) deposition of HBML. As I discussed above, the Hellings deposition transcript was found 

suitable for judicial notice as a public record filed in another case whose existence cannot 

reasonably be questioned. The objection is OVERRULED. 

As for the Doty declaration, HBML’s objections are brought on the grounds of a lack of 

authentication and lack of personal knowledge for both Exhibit I, an ad from the Los Angeles 

Times, and Exhibit N, a Tillotson Director’s Report. HBML raises these technical objections 

without giving cause for concern about authenticity, even though each was raised in depositions 

taken in jurisdictional discovery. At this stage, it is clear from the exhibits themselves that they 

are what they purport to be. See Fed. R. Evid. 901(b)(4) (a document’s “appearance, contents, 

substance, internal patterns, or other distinctive characteristics of the item, taken together with all 

the circumstances” is evidence enough to satisfy the authentication requirement). There is no 

indication from HBML or otherwise that plaintiffs would be unable to authenticate the exhibits in 

trial. See Faulks v. Wells Fargo & Co., 231 F.Supp.3d 387, 397-98 (N.D. Cal. 2017) (overruling 

objections to admissibility because “it is possible that the facts underlying [the exhibit] could be 

admissible at trial.”). These objections are OVERRULED. 

Finally, with respect to HBML’s reply to Swagelok’s opposition, HBML objects to the 

Berle declaration and several of its attached exhibits. See Reply to Swagelok Opposition at (Dkt. 

No. 127). HBML objects to paragraph 23 to the extent it summarizes Lyondell bankruptcy 
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documents. I do not rely on Berle’s summary of the Lyondell bankruptcy, so this objection is 

moot. HBML also objects to Berle declaration paragraphs 15 and 32, but since I do not rely on

these paragraphs in the Order these objections are moot as well. 

HBML then objects to Exhibits L and BB for lack of authentication and lack of personal 

knowledge to authenticate the documents. In addition, HBML objects to Exhibit BB for lack of 

foundation. Exhibit L, a copy of HBML meeting minutes, was produced by HBML in 

jurisdictional discovery. See Doty Decl. ¶ 16, Ex. L (explaining that the meeting minutes were 

produced by Dransfield in his capacity as HBML’s Rule 30(b)(6) witness). Exhibit BB, a 1976 

letter from Allied Paper to the Department of Natural Resources, was introduced by Berle citing 

the ancient document exception to hearsay. 

Like cases at summary judgment, here the authenticity and lack of personal knowledge 

objections are not well-taken because there is no suggestion the evidence would not be admissible 

at trial. See Faulks, 231 F.Supp.3d at 397-98. Moreover, courts tend not to exclude evidence 

before trial based on objections to form—such as a lacks foundation challenge—as opposed to

whether its contents are admissible. Ochoa v. Santa Clara Cty. Office of Educ., No. 16-CV03283-HRL, 2017 WL 2423183, at *5 (N.D. Cal. June 5, 2017) (“courts at the summary judgment 

stage focus not on the form of the evidence submitted by the parties but on the admissibility of its 

contents.”). The objections to Exhibit L and BB are OVERRULED.

CONCLUSION

For the reasons stated above, HBML’s motion to dismiss for lack of jurisdiction is 

DENIED. It shall answer the SAC within fourteen days of the date below.

IT IS SO ORDERED.

Dated: January 30, 2019 

William H. Orrick

United States District Judge