Ellis v. Bridgestone Americas, Inc. (2018)

Our plain-English summary of Ellis v. Bridgestone Americas, Inc. (U.S. District Court, Northern District of Ohio, December 13, 2018).

Robert Joseph Ellis sued Bridgestone Americas, McNeil & NRM and others in the Middle District of North Carolina. He alleged that he contracted mesothelioma from asbestos-containing products made by McNeil while he worked at a Bridgestone-Firestone plant in Wilson, North Carolina. Bernard Lesneski, a nonparty who retired from McNeil in 2012 and had testified as its corporate representative in earlier asbestos cases, was subpoenaed to give a deposition in Akron, Ohio, and to produce documents about the plant. He asked the Northern District of Ohio to quash the subpoena or, alternatively, to send the matter back to North Carolina. Both Lesneski and Ellis consented to a transfer. The court transferred the motion to the issuing court in North Carolina, reasoning that this would help that court supervise the litigation. It also denied Ellis's motion to strike Lesneski's reply, which was nearly two weeks late, because Ellis showed no prejudice from the delay.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Northern District of Ohio
• Decided: December 13, 2018
• Docket: Case No. 5:18-MC-85
• Stage: Discovery or evidence ruling
• State: Ohio

Outcome. The court transferred nonparty Bernard Lesneski's motion to quash a deposition and document subpoena to the Middle District of North Carolina, the issuing court, and denied Plaintiff Ellis's motion to strike Lesneski's late reply.

What the court held. Under Rule 45(f), a court where compliance is required may transfer a motion to quash to the issuing court if the subpoenaed person consents. A late reply brief may be allowed in the court's discretion when the opposing party shows no prejudice.

Issues decided: Trial Procedure and Discovery, Venue, Removal and Transfer.

The people and their exposure

• Robert Joseph Ellis: mesothelioma

The defendants

• Bridgestone Americas, Inc. (premises owner)
• McNeil & NRM (manufacturer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

ROBERT JOSEPH ELLIS, Plaintiff,

v.

BRIDGESTONE AMERICAS, INC., etal., Defendants.

Case No. 5:18-MC-85.

December 13, 2018.

United States District Court, N.D. Ohio.

Robert Joseph Ellis, Plaintiff, represented by Jessica M. Dean, Dean Omar & Branham.

Bernard Lesneski, Movant, represented by Nathan A. Ray, Burdon & Merlitti.

ORDER

[Resolving Docs. 1, 6]

JAMES S. GWIN, District Judge.

Bernard Lesneski, a nonparty to an asbestos lawsuit pending in the Middle District of Northern Carolina, moves under Federal Rule of Civil Procedure 45 to quash the subpoena he received in that case.[1] The Plaintiff in the case also moves to strike Lesneski's response to Plaintiff's brief in opposition to his motion to quash. For the following reasons, the Court TRANSFERS the motion to quash to the issuing court and DENIES Plaintiff's motion to strike.

Plaintiff alleges that he was exposed to asbestos-containing products manufactured by Defendant McNeil & NRM ("McNeil") while working at a Bridgestone-Firestone plant in Wilson, North Carolina. Plaintiff alleges that he contracted mesothelioma as a result.

Movant Lesneski, who retired from McNeil in 2012, has testified as a corporate representative for Defendant McNeil in prior asbestos litigation. On August 7, 2018, he received a subpoena issued in the Middle District of North Carolina requiring him to appear for a deposition in Akron and to produce certain documents related to the plant.[2]

This is not the first time that Movant Lesneski has been subpoenaed to appear in North Carolina asbestos litigation this year. In April, Lesneski filed a motion in the Northern District of Ohio to quash a subpoena in another Middle District of North Carolina case captioned Finch v. BASF Catalysts, LLC.[3] Judge Polster transferred the motion to the issuing court,[4] which subsequently quashed the subpoena.[5]

Rule 45(f) provides that "[w]hen the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents."[6] In his reply to Plaintiff's brief in opposition, Lesneski asks the Court to quash the subpoena, or in the alternative requests "that this matter be remanded to the North Carolina District Court."[7] Plaintiff also consents to transfer.[8] Because Movant Lesneski agrees to the transfer, and because this transfer would aid the issuing court's supervision of the litigation, the Court transfers the motion to the Middle District of North Carolina district court.

Plaintiff Ellis moves to strike Movant Lesneski's reply to its brief in opposition as untimely; in the alternative, he requests leave to file a surreply. Under Local Rule 7.1(e), Movant Lesneski was required to file his nondispositive motion reply memorandum seven days after service of the memorandum in opposition. Here, Movant missed this deadline by nearly two weeks. While Movant's reply was untimely, Plaintiff has not shown any prejudice resulting from the delay. The Court will deny the motion to strike as a matter of discretion.

For the foregoing reasons, the Court TRANSFERS the motion to the issuing court and DENIES the motion to strike Movant's reply.

IT IS SO ORDERED.

[1] Doc. 1. Plaintiff opposes. Doc. 4. Movant replies. Doc. 5.

[2] See Doc. 1-1.

[3] No. 5:18-MC-31 (N.D. Ohio), ECF No. 1.

[4] Doc. 4-5.

[5] Doc. 4-6.

[6] Fed. R. Civ. P. 45(f).

[7] Doc. 5 at 5.

[8] Doc. 4 at 5 n. 1.

Sources

• The opinion on Google Scholar
• Ohio asbestos laws
• Ohio asbestos exposure sites