Filed: Aug. 21, 2014
Latest Update: Aug. 21, 2014
Summary: ORDER DONALD G. WILKERSON, Magistrate Judge. Now pending before the Court is a Rule 5(c)(1)(B) Motion filed by Defendant Union Carbide Corporation, on March 25, 2014 (Doc. 58). The Motion is GRANTED. Federal Rule of Civil Procedure 5(c)(1)(B) Pursuant to the Hearing held on June 13, 2014, certain Defendants have submitted a proposed order, and the Standing Orders of the state courts that handle asbestos litigation in this District, related to the "institution of denials" allowed by the Fede
Summary: ORDER DONALD G. WILKERSON, Magistrate Judge. Now pending before the Court is a Rule 5(c)(1)(B) Motion filed by Defendant Union Carbide Corporation, on March 25, 2014 (Doc. 58). The Motion is GRANTED. Federal Rule of Civil Procedure 5(c)(1)(B) Pursuant to the Hearing held on June 13, 2014, certain Defendants have submitted a proposed order, and the Standing Orders of the state courts that handle asbestos litigation in this District, related to the "institution of denials" allowed by the Feder..
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ORDER
DONALD G. WILKERSON, Magistrate Judge.
Now pending before the Court is a Rule 5(c)(1)(B) Motion filed by Defendant Union Carbide Corporation, on March 25, 2014 (Doc. 58). The Motion is GRANTED. Federal Rule of Civil Procedure 5(c)(1)(B)
Pursuant to the Hearing held on June 13, 2014, certain Defendants have submitted a proposed order, and the Standing Orders of the state courts that handle asbestos litigation in this District, related to the "institution of denials" allowed by the Federal Rules. Rule 5(c)(1) provides:
In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that:
* * *
(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties....
This seldom used Rule only applies to pleadings and does not excuse the filing of papers with the court or service upon Plaintiff. This case, as in other cases that raise claims related to asbestos exposure, generally is filed against dozens of Defendants who tend to file similar pleadings that include identical affirmative defenses, crossclaims, and counterclaims. Defendants also tend to file similar responses to these claims. It is not until discovery has begun that a vast majority of Defendants are dismissed, some with prejudice. It would accordingly be economical for the Court to deem crossclaims, counterclaims, avoidance, and affirmative defenses as being denied and avoided as to all other Defendants. Defendants' Motion seeking such relief is GRANTED (Doc. 352, 452).
Attached to this Order is a proposed Order/stipulation generated by certain defendants, in a similar case pending before the Court, Mohler v. Air & Liquid, et al., 3:13-cv-1221-DGW-SCW, that is ADOPTED herein as if fully set forth except with respect to the following paragraphs:
4. That all crossclaims are deemed severed from Plaintiff's action for both discovery and separate trial, pursuant to Federal Rules of Civil Procedure 21, 13(i), and 42(b);
5. That Defendants reserve the right to file additional crossclaims and affirmative defenses against one another no later than 60 days prior to trial in the severed action;
6. That upon Plaintiff's voluntary dismissal of any Defendant, or the Court's dismissal of all of Plaintiff's claims against any Defendant, the remaining Defendants' crossclaims are deemed dismissed without prejudice as to the dismissed Defendant pursuant to Federal Rule of Civil Procedure 41(c); if, however, a remaining Defendant wishes to maintain its crossclaim against the dismissed Defendant, it must assert its crossclaims within 21 days of the dismissal.
It does not appear to be efficient to sever crossclaims into a new action. As noted above, Defendants each will essentially be asserting the same crossclaims, counterclaims, and/or affirmative defenses. The list of Defendants also will likely be whittled down to only a few Defendants against whom this case will proceed to trial. Therefore, it does not appear efficient to sever the crossclaims of all Defendants into a wholly new lawsuit when it is likely that most of those claims will be dismissed by operation of Orders in this suit. It also appears inefficient to compel Defendants to engage in discovery at this stage of the proceedings on these crossclaims both because a majority will not go to trial and because most of these crossclaims appear to raise legal, as oppose to factual, issues. Therefore, the Court STAYS discovery on the crossclaims. This matter currently has December 30, 2014 deadline for the amendment of pleadings and a discovery deadline of July 15, 2015. This matter is set for a telephonic status conference on February 25, 2015 at 2:00 p.m. Plaintiff shall initiate the conference call by conferencing in all parties and then calling the Court at 618-482-9004. At that conference, the parties should be prepared the discuss discovery on the crossclaims and the potential for separate dispositive motions on those claims.
Any additional Defendant, who has entered an appearance, who wishes to join in the attached stipulation must do so by September 5, 2014 by filing a Notice with the Court. Any other Defendant who wishes to join in the attached stipulation must file a Notice with the Court on the date that their Answer is due. As noted in the Scheduling Order (Doc. 700), dismissal of a party automatically results in dismissal of the cross/counter claims made by or against that party unless an objection is filed within 5 days of the motion to dismiss.
IT IS SO ORDERED.
ELAINE MOHLER, Individually and as
Special Administrator of the Estate of
LARRY MOHLER, Deceased,
Plaintiff,
v. CASE No.: 3:13-cv-01221-DGW-SCW
AIR & LIQUID SYSTEMS CORP., et al.,
Defendants.
DEFENDANTS AGREED ORDER REGARDING CROSSCLAIMS, ANSWERS TO CROSSCLAIMS, AND AFFIRMATIVE DEFENSES TO CROSSCLAIMS
In an effort to simplify docket filings and overall judicial economy, the undersigned Defendants stipulate as follows:
1. That all crossclaims the undersigned Defendants have against one another, including, but not limited to, crossclaims for contribution, indemnification, and set-off, are deemed filed and served;
2. That all such crossclaims among Defendants are deemed denied, pursuant to Federal Rule of Civil Procedure 5(c)(1)(B);
3. That affirmative defenses to such crossclaims are deemed filed; those affirmative defenses include, but are not limited to:
a. The crossclaims fail to state a claim against Defendants upon which relief may be granted.
b. The crossclaims are barred in whole or in part by the Statute of Limitations and/or the applicable Statute of Repose of the State of Illinois, 735 ILCS § 5/13-213 and/or 735 ILCS 5/13-214(b).
c. The conduct of the Crossclaimant is the sole proximate cause or a proximate cause of the injuries alleged in the crossclaims. By reason of the aforesaid, Crossclaimant's recovery, if any, should be limited pursuant to 735 ILCS 5/2-1116.
d. Pursuant to 735 ILCS 5/2-1117, any defendant whose fault is determined by the trier of fact to be less than 25% of the total fault attributable to the Crossclaimant, and any third-party defendant who could have been sued by the Crossclaimant, shall only be severally and not jointly liable.
i. If Plaintiff sustained injuries and damages as a result of Plaintiff's exposure to any product manufactured by or on the premises of Defendants, as alleged in the crossclaims, and which Defendants continue to deny, the amount of fault attributable to Defendants, if any, is less than 25% of the total fault, and thus, subject to the provisions of 735 ILCS 5/2-1117, Defendants are only severally liable.
e. Defendants deny that Crossclaimant has incurred any injuries or damages. However, as to any injuries or damages Crossclaimant alleges to have incurred, Crossclaimant voluntarily and knowingly assumed the risk of incurring any of the injuries or damages alleged in the crossclaims and, therefore, Crossclaimant is not entitled to recover from Defendants.
f. Defendants deny that Crossclaimant incurred any damages. However, as to any injuries or damages Crossclaimant alleges to have incurred, Crossclaimant failed to exercise ordinary care, and such failure on his part proximately caused any injuries or damages alleged in the crossclaims.
g. Plaintiff was not exposed to any asbestos material through any act or omission of Defendants, or if such exposure occurred, which is denied, such exposure was of such insufficient quantities, at such infrequent intervals, for such short periods of time, or under such conditions as not to amount to the proximate cause of Plaintiff's damages, if any, as a matter of law. Therefore, Defendants deny that any of their products or asbestos on their premises or any alleged action or inaction on their part damaged or injured Plaintiff in any manner or at any time.
h. There is a lack of joinder of one or more parties who should or must be joined and, without joinder of these proper parties, complete relief cannot be accorded among those already attempted to be made parties to this civil action.
i. To the extent that Crossclaimant has received payment from any alleged joint tortfeasor in full satisfaction of any of the alleged injuries and/or claims against Defendants and/or other alleged joint tortfeasors, the crossclaims are barred by the defenses of payment and accord and satisfaction.
j. If Crossclaimant has heretofore settled or should hereafter settle for any of the alleged injuries and damages with any parties, then Defendants are entitled to a credit in the amount of said settlement.
k. Defendants assert that the state of medical and scientific knowledge and all materials relating thereto at all times material herein were such that Defendants neither knew nor could have known that asbestos-containing products of the type they manufactured presented a significant risk of harm to Plaintiff if properly used.
l. Crossclaimant's cause should be dismissed or, in the alternative, transferred pursuant to 28 U.S.C. § 1404.
m. Defendants adopt and assert any defenses raised or asserted by other defendants in this case that are not inconsistent with Defendants' own defenses.
n. To the extent that Plaintiff sustained any injury as alleged, which is denied, during service on a marine vessel, work in a marine shipyard, or in the course of marine commerce or navigation, then maritime law applies to those exposure claims. Under maritime law, Defendants are not responsible for any injuries arising from these alleged exposures because they did not manufacturer or distribute any of the asbestos allegedly associated with their products.
o. To the extent that Plaintiff sustained any injury as alleged, which is denied, during service on a marine vessel, work in a shipyard, or in the course of marine commerce or navigation, Defendants are immune to liability based on the government contractor defense.
4. That all crossclaims are deemed severed from Plaintiff's action for both discovery and separate trial, pursuant to Federal Rules of Civil Procedure 21, 13(i), and 42(b);
5. That Defendants reserve the right to file additional crossclaims and affirmative defenses against one another no later than 60 days prior to trial in the severed action;
6. That upon Plaintiff's voluntary dismissal of any Defendant, or the Court's dismissal of all of Plaintiff's claims against any Defendant, the remaining Defendants' crossclaims are deemed dismissed without prejudice as to the dismissed Defendant pursuant to Federal Rule of Civil Procedure 41(c); if, however, a remaining Defendant wishes to maintain its crossclaim against the dismissed Defendant, it must assert its crossclaims within 21 days of the dismissal;
7. That any defendants that have not signed below may file a notice joining this motion at a later time.
WHEREFORE, the undersigned Defendants move the Court to issue an order giving effect to this Agreed Order and for any such further relief the Court deems just and proper.
