Belue et al v. A.O. Smith Electrical Products Company et al

RESPONSE to Motion re MOTION to Stay Defendant Owens-Illinois, Inc.'s Response to Plaintiffs' Motion to Stay

M.D. Ala.January 23, 2007

538635.1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ROBERT E. BELUE, et al. ) ) Plaintiffs, ) ) vs. ) Civil Action No: ) 2:06-cv-01034-WKW-WC ) A. O. SMITH ELECTRICAL PRODUCTS ) COMPANY, a Division of A.O. ) SMITH CORPORATION, et al. ) ) Defendants. ) DEFENDANT OWENS-ILLINOIS, INC.’S RESPONSE TO PLAINTIFFS’ MOTION TO STAY Comes the defendant, Owens-Illinois, Inc. (“OI”), by and through counsel, and respectfully submits this Response to Plaintiffs’ Motion to Stay. Defendant OI would show this Court that plaintiffs’ Motion should be denied for the following reasons. ARGUMENT I. PLAINTIFFS HAVE FAILED TO PROVIDE THIS COURT WITH ANY BASIS FOR GRANTING THE REQUESTED STAY. Plaintiffs have not carried their burden of demonstrating a basis for staying the case. To the contrary, plaintiffs do not cite to a statute, rule, case law, or any other authority to establish that this Court should stay this case pending a decision by the Judicial Panel in the Multidistrict Litigation for the actual transfer of the case. Moreover, as demonstrated by the actions of the other United States District Court in the State of Alabama discussed in Defendants’ Motions to Dismiss, it serves to promote judicial efficiency and avoid the waste of valuable judicial resources for this Court to consider the many Motions to Dismiss, or in the alternative, Motions for More Definite Statement or for Severance that have been filed with the Court that clearly Case 2:06-cv-01034-WKW-WC Document 154 Filed 01/23/2007 Page 1 of 5 2 538635.1 demonstrate the numerous deficiencies contained in the Complaint. See Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement or to Sever, Memorandum in Support Thereof filed by Bondex International, Inc. and joined by numerous defendants, including Owens-Illinois, Inc., attached hereto as Exhibit A. II. ASSUMING THE FACTS AS ALLEGED IN THE COMPLAINT, THIS COURT SHOULD RULE UPON THE PENDING MOTIONS TO DISMISS RELATING TO THE CLAIMS OF PLAINTIFFS, JOHNNY A. DAVIS AND PENELOPE PERAKIS, BECAUSE THEY ARE CLEARLY TIME BARRED BY ALABAMA’S STATUTE OF LIMITATIONS. Rule 1 of the Federal Rules of Civil Procedure provides in part that “all suits of a civil nature . . . shall be construed and administered to secure the just, speedy, and inexpensive determination of every action. Fed. R. Civ. P. 1. This Court is in a position to consider threshold questions arising under Alabama law which based upon indisputable facts should lead to the dismissal of certain claims in this action. Specifically, the claims of plaintiffs, Johnny A. Davis and Penelope Perakis, should be dismissed for failure to comply with Alabama’s statute of limitations for personal injury actions. Prior to May 19, 1980, Alabama had a one-year statute of limitations for personal injury actions not resulting in death. Ala. Code § 6-2-39 (repealed 1980). Under the law as it existed prior to May 19, 1980, the cause of action accrued and the statute of limitations began to run from the date the injured person was last exposed to the danger, whether or not the full amount of damages or injuries was apparent. Garrett v. Raytheon Co., 368 So. 2d 516, 520 (Ala. 1979); Cazalas v. Johns-Manville Sales Corp., 435 So. 2d 55, 57 (Ala. 1983). Effective May 19, 1980, the Alabama legislature repealed § 6-2-39 and prospectively enacted a new “discovery rule” which provides that a personal injury action resulting from asbestos exposure accrues on the date the injured person, through reasonable diligence, should Case 2:06-cv-01034-WKW-WC Document 154 Filed 01/23/2007 Page 2 of 5 3 538635.1 have reason to discover the alleged injury. Ala. Code § 6-2-30(b). However, the Alabama Supreme Court held in Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala. 1981), that the “discovery rule” statute of limitations that was enacted in 1980 does not apply retroactively.1 Therefore, a personal injury plaintiff who last was exposed to asbestos prior to May 19, 1979 must bring suit within one year of the date of last exposure. See Johnson v. Garlock, Inc., 682 So. 2d 25, 26-28 (Ala. 1996). The claims of plaintiffs, Johnny A. Davis and Penelope Perakis, are due to be dismissed because they were not brought within one year of the last date of exposure to asbestos based on the information contained in the Complaint. The Complaint alleges that Johnny A. Davis worked as a laborer at the Johns-Manville facility from 1968-1973. Complaint, ¶ 4. It also alleges he worked as a laborer in the U. S. Army on cargo ships Id. However, no dates are provided for this period of employment. On the face of the Complaint, plaintiff Davis’ claims are barred for failing to bring suit within the applicable statute of limitations. As such, his claims are due to be dismissed. Likewise, according to the allegations of the Complaint, plaintiff Penelope Perakis was last exposed to asbestos in 1952 while working as a taper of pipes at General Electric. Complaint, ¶ 11. As a result, plaintiff Perakis’ claims are due to be dismissed for failing to bring suit within the prescribed time period as required by Alabama law. For these reasons, which are undisputed because they are based entirely upon the allegations contained in the plaintiffs’ 1 While the Garrett and Tyson decisions may be partially superseded by § 6-2-30, these cases are still controlling with regards to claims based on a date of last exposure prior to May 19, 1979. See Johnson v. Garlock, Inc., 682 So. 2d 25, 26-28 (Ala. 1996). Case 2:06-cv-01034-WKW-WC Document 154 Filed 01/23/2007 Page 3 of 5 4 538635.1 Complaint, this Court should grant defendant OI’s Motion to Dismiss based upon the applicable statute of limitations as it relates to the Davis and Parakis claims. III. THE COURT SHOULD DENY THE PLAINTIFFS’ MOTION TO STAY BECAUSE THIS COURT IS IN THE BEST POSITION TO REQUIRE PLAINTIFF TO COMPLY WITH THE THRESHOLD PLEADING REQUIREMENTS OF THE FEDERAL RULES OF CIVIL PROCEDURE BEFORE TRANSFERRING THIS CASE TO THE MDL. This Court is in the unique position to consider certain threshold issues that are pending before it based upon filings by numerous defendants before this case is transferred to the MDL. For example, plaintiffs’ Complaint fails to state a claim upon which relief may be granted pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure. See Argument II set forth in the Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement or to Sever, Memorandum in Support Thereof filed by Bondex International, Inc. and joined by numerous defendants, including Owens-Illinois, Inc., attached hereto as Exhibit A. Additionally, plaintiffs’ Complaint is due to be dismissed for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Id. at p. 3. Moreover, plaintiff’s Complaint is due to be dismissed for failure to plead fraud with particularity as required by Rules 9(b) of the Federal Rules of Civil Procedure. Id. at p.6. Furthermore, plaintiffs are not properly joined under Rule 20 of the Federal Rules of Civil Procedure and their claims should therefore be severed into individual cases. Id. at p.10. In the alternative, plaintiffs should be required to provide a more definite statement of their claims in accordance with Rule 12 (e) of the Federal Rules of Civil Procedure. The claims made in the current pleading are vague and ambiguous such that a party cannot reasonably be required to frame a responsive pleading at this time. Rather than simply transferring this case to the MDL in its current state, it is important for the parties to have a fair understanding of the Case 2:06-cv-01034-WKW-WC Document 154 Filed 01/23/2007 Page 4 of 5 5 538635.1 claims being made and that can only be assured if there is a proper Complaint filed in accordance with the Federal Rules of Civil Procedure. WHEREFORE, for the above-stated reasons, defendant OI respectfully requests that this Court deny plaintiffs’ Motion to Stay. Respectfully submitted this 23rd day of January, 2007. By: __/s/ Anthony C. Harlow__________ Anthony C. Harlow - Bar Number: ASB-5692-W474 Attorneys for Owens-Illinois, Inc. STARNES & ATCHISON LLP Seventh Floor, 100 Brookwood Place P.O. Box 598512 Birmingham, AL 35259-8512 Email: ach@starneslaw.com (205) 868-6000 CERTIFICATE OF SERVICE I hereby certify that on January 23, 2007, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court’s electronic filing system. /s/ Anthony C. Harlow Anthony C. Harlow - Bar Number: ASB-5692-W474 Attorneys for Owens-Illinois, Inc. STARNES & ATCHISON LLP Seventh Floor, 100 Brookwood Place P.O. 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