Our plain-English summary of Livernois v. National Ship and Shipbuilding Company (U.S. District Court, Southern District of California, August 29, 2018).
William Livernois, who was diagnosed with mesothelioma, sued National Steel and Shipbuilding Company (NASSCO) in federal court in San Diego. He claimed he was exposed to asbestos while serving in the Navy aboard multiple ships between 1957 and 1978. He alleged NASSCO manufactured, serviced or repaired asbestos-containing ships. Earlier, he had sued 80 defendants, including NASSCO, in Alameda County state court, then dropped NASSCO after it said it would remove the case to federal court on a government contractor defense. Another defendant removed that case anyway, and Livernois sought to amend his complaint and remand it. He then asked this court to dismiss the San Diego action without prejudice. NASSCO opposed, calling it forum shopping. The court granted the motion. It found that NASSCO identified forum shopping but no cognizable prejudice, and that the plaintiff is master of his own complaint.
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.
You don't need the product names or old records. No fee unless we recover compensation for your family.
The decision
- Court: U.S. District Court, Southern District of California
- Decided: August 29, 2018
- Docket: Case No. 18cv1326 JM(JMA)
- Stage: Motion to dismiss
- State: California
Outcome. The court granted plaintiff William Livernois's motion to voluntarily dismiss his action against NASSCO without prejudice, rejecting NASSCO's forum-shopping objection because NASSCO showed no cognizable prejudice.
What the court held. Under Rule 41(a)(2), a court may allow voluntary dismissal without prejudice when the defendant identifies no cognizable prejudice, even if the plaintiff's motive involves forum shopping.
Issues decided: Government Contractor Defense and Removal, Trial Procedure and Discovery, Venue, Removal and Transfer.
The people and their exposure
- William Livernois: mesothelioma
| Who | Work | Where | When | Products |
|---|---|---|---|---|
| William Livernois | service in the United States Navy aboard multiple ships (the Navy); military service | Navy ships | 1957-1978 |
The defendants
- National Steel and Shipbuilding Company (NASSCO) (contractor)
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.
WILLIAM LIVERNOIS, Plaintiff,
v.
NATIONAL SHIP AND SHIPBUILDING COMPANY, Defendant.
Case No. 18cv1326 JM(JMA).
August 29, 2018.
United States District Court, S.D. California.
William Livernois, an individual, Plaintiff, represented by Robert Allen Green, Weitz & Luxenberg, P.C. & Josiah William Parker, Weitz & Luxenberg PC.
National Steel and Shipbuilding Company, Defendant, represented by Paul Morgan Bessette, Demler, Armstrong & Rowland, LLP.
ORDER GRANTING MOTION TO VOLUNTARILY DISMISS ACTION
JEFFREY T. MILLER, District Judge.
Pursuant to Fed.R.Civ.P. 41(a)(2), Plaintiff moves for a court order to voluntarily dismiss the action without prejudice. National Ship and Shipbuilding Company ("NASSCO") opposes the motion. Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to voluntarily dismiss the action without prejudice.
BACKGROUND
The Present Action
On June 19, 2018, Plaintiff commenced this diversity action by alleging four claims for relief: negligence, breach of express and implied warranties, strict liability, and premises owner/contractor liability. Plaintiff, diagnosed with mesothelioma, seeks compensation as a result of his exposure to asbestos during the course of his service in the United States Navy aboard multiple ships between 1957 and 1978. (Compl. Exh. A).
Plaintiff alleges that NASSCO, over the years, "manufactured, modified, failed to retrofit, serviced and/or repaired asbestos-containing ships and vessels." (Compl. ¶13). Plaintiff attributes his disease to exposure to asbestos fibers. (Compl. ¶21). The First Filed State Court Action
On May 4, 2018, Plaintiff brought an asbestos personal injury action in Alameda County Superior Court against 80 defendants, including NASSCO, alleging the same claims as asserted herein. On June 4, 2018, NASSCO informed Plaintiff that it intended to remove the action to the United States District Court for the Northern District based upon a federal contractor defense. On June 5, 2018, "[f]earing that it [NASSCO] might remove the entire case to federal district court under 28 U.S.C. §1442(a)(1)," (Motion at p.2:11-12), the provision permitting removal based upon the existence of colorable federal defenses or officials, Plaintiff voluntarily dismissed NASSCO.
Removal of the State Court Action
On June 22, 2018, one of the defendants, Fryer-Knowles, Inc., removed the state court action to the Northern District of California pursuant to 28 U.S.C. §1442(a)(1). On July 17, 2018, Fryer-Knowles, Inc. filed a motion for a convenience
transfer to this court. In response, on July 20, 2018, Plaintiff filed two motions: (1) a motion to amend to remove the basis for federal subject matter jurisdiction, and (2) a motion to remand to state court. Both motions remain pending. DISCUSSION
Fed.R.Civ.P. 41(a)(2) permits a plaintiff to voluntarily dismiss an action upon obtaining a court order to do so. The voluntary dismissal shall be "on terms the court considers proper." Fed.R.Civ.P. 41(a)(2). "The purpose of the rule is to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced, or unfairly affected by dismissal." Stevedoring Services of Am. v. Armilla Int'l B.V., 899 F.2d 919, 921 (9thy Cir. 1989).
In large part, NASSCO argues that Plaintiff is engaged in a futile and blatant effort of forum shopping. Plaintiff acknowledges that he intends to amend the complaint in the Northern District of California action to eliminate federal subject matter jurisdiction, and then seek to remand the action to state court. NASSCO posits that all work it performed on vessels of the United States gives rise to colorable federal defenses under government contractor immunity, thereby giving rise to federal subject matter jurisdiction under 28 U.S.C. §1442(a)(1).
While NASSCO identifies Plaintiff's forum shopping activities, it fails to identify any cognizable prejudice should Plaintiff's motion be granted. As Plaintiff is master of his own complaint, and NASSCO fails to identify cognizable prejudice, the court grants the motion to voluntarily dismiss this action without prejudice.
In sum, the motion to voluntarily dismiss this action under Fed.R.Ci9v.P. 41(a)(2) is granted.
IT IS SO ORDERED.
Sources
How to cite it
Cite the decision
Livernois v. National Ship and Shipbuilding Company, No. Case No. 18cv1326 JM(JMA) (U.S. District Court, Southern District of California August 29, 2018).
Cite our summary
“Summary of Livernois v. National Ship and Shipbuilding Company.” AsbestosClaims.Law Library. https://asbestosclaims.law/library/cases/livernois-v-national-ship-and-shipbuilding-company-2018.
ACL Doc numbers and their short links never change. See how to cite the Library.
Talk with an asbestos lawyer
Start with what you remember, and we'll take it from there.
This page is provided for general informational purposes and does not constitute legal advice. Every asbestos case turns on its own facts, exposure history, diagnosis, deadlines, available evidence, and applicable law. Reviewing this page does not create an attorney-client relationship. For advice about your specific situation, call 833-4-ASBESTOS for a free case review.