Stansbury v. McCARTY Corporation (E.D. La., June 15, 2022, as to MW Custom Papers)

Our plain-English summary of Stansbury v. McCARTY Corporation (U.S. District Court, Eastern District of Louisiana, June 15, 2022).

Lennard Stansbury sued in Louisiana state court, alleging he developed mesothelioma from asbestos exposure at industrial and marine jobsites in the greater New Orleans area, including Avondale Shipyard and Dixie Machine, Welding & Metal Works, from about 1966 to the late 1970s. The case was removed to federal court. In the third-party litigation, Albert L. Bossier, Jr. filed a third-party demand against MW Custom Papers, then died on November 14, 2021. His counsel filed a suggestion of death on January 7, 2022, and served it electronically that day. No one moved to substitute a party within 90 days. MW Custom moved to dismiss, and no one opposed the motion. The court applied Federal Rule of Civil Procedure 25(a)(1), which requires dismissal if no substitution motion is made within 90 days after service of the suggestion of death. It granted the motion and dismissed Bossier's claims against MW Custom without prejudice. The opinion does not decide anything about Stansbury's own claims.

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, Eastern District of Louisiana
• Decided: June 15, 2022
• Docket: Civil Action No. 21-1909
• Stage: Motion to dismiss
• State: Louisiana

Outcome. The court granted third-party defendant MW Custom Papers' motion and dismissed, without prejudice, third-party plaintiff Albert L. Bossier, Jr.'s claims against it because no substitution motion was made within 90 days after the suggestion of death.

What the court held. Under Federal Rule of Civil Procedure 25(a)(1), if no motion for substitution is made within 90 days after service of a statement noting a party's death, the action by or against the decedent must be dismissed.

Issues decided: Wrongful Death and Survival, Trial Procedure and Discovery.

The people and their exposure

• Lennard H. Stansbury: mesothelioma

The defendants

• MW Custom Papers, LLC
• Huntington Ingalls Incorporated (premises owner)
• Employers Insurance Company of Wausau (insurer)
• McCarty Corporation

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Stansbury v. McCARTY Corporation (January 6, 2022). The court denied plaintiff Stansbury's motion to remand, keeping the whole case in federal court after Avondale removed it, and ruled in favor of Avondale and Wausau.
• Stansbury v. McCARTY Corporation (June 15, 2022). The court granted the motion of Bertram C. Hopeman and Liberty Mutual (as alleged insurer of Hopeman Brothers' executive officers) to dismiss plaintiff Stansbury's executive-officer negligence claims, unless he filed an amended complaint by July 8, 2022 curing the deficiencies.
• Stansbury v. McCARTY Corporation (October 4, 2022). The federal district court granted Lennard Stansbury's motion to remand, declined to keep the state-law claims, and sent the case back to Orleans Parish Civil District Court over the opposition of Employers Insurance Company of Wausau.

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.

LENNARD H. STANSBURY,

v.

McCARTY CORPORATION, ET AL., SECTION "B" (3).

Civil Action No. 21-1909.

June 15, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

IVAN L.R. LEMELLE, District Judge.

Before the Court are third-party defendant MW Custom Papers, LLC ("MW Custom")'s motion to dismiss Albert L. Bossier, Jr.'s third-party claims against MW Custom for failure to timely substitute a party (Rec. Doc. 173) and a suggestion of death regarding Albert L. Bossier, Jr. (Rec. Doc. 101).

For the reasons discussed below,

IT IS ORDERED that third-party defendant MW Custom's motion to dismiss for failure to timely substitute a party (Rec. Doc. 173) is GRANTED, dismissing third-party plaintiff Albert L. Bossier, Jr.'s claims against MW Custom without prejudice. I. FACTS AND PROCEDURAL HISTORY

Plaintiff Lennard H. Stansbury alleges exposure to asbestos when he worked at various industrial and marine jobsites in the greater New Orleans, Louisiana area from approximately 1966 to the late 1970s. The jobsites included Avondale Shipyard and Dixie Machine, Welding & Metal Works, Inc. Rec. Doc. 7-1 at 3; Rec. Doc. 1-1 at 2; Rec. Doc. 1-2 at 24. Plaintiff currently suffers from mesothelioma which he attributes to his occupational exposure to asbestos. Rec. Doc. 7-1 at 3. On November 20, 2020, plaintiff filed suit in state court alleging negligence, product liability, and tort liability related to asbestos exposure. Rec. Doc. 1-1 at 4. Employers Insurance Company of Wausau filed a third-party demand on August 24, 2021, naming Huntington Ingalls Incorporated (f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc.) ("Huntington") and Albert L. Bossier, Jr. as third-party defendants. Rec. Doc. 1-4 at 19. Huntington then filed a notice of removal on October 19, 2021. Rec. Doc. 1. Plaintiff subsequently filed a motion to remand (Rec. Doc. 7), which was denied by this Court on January 6, 2022. Rec. Doc. 98.

Bossier, Jr. filed a third-party demand naming MW Custom Papers as a defendant on October 20, 2021. Rec. Doc. 4 at 13. Almost one month later, on November 14, 2021, Bossier, Jr. passed away. Rec. Doc. 101. On January 7, 2022, Bossier, Jr.'s counsel filed a suggestion of death noting Bossier, Jr.'s death into the record. Id. The notice was served on MW Custom the same day via the Court's electronic filing system. Rec. Doc. 173-1 at 1. MW Custom filed the instant motion to dismiss Albert L. Bossier, Jr.'s third-party claims against MW Custom for failure to timely substitute a party on June 1, 2022.[1] Rec. Doc. 173. No party timely opposed MW Custom's motion.

II. LAW AND ANALYSIS

Federal Rule of Civil Procedure 25(a)(1) provides:

If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.

Fed. R. Civ. P. 25(a)(1). Here, Bossier, Jr. died on November 14, 2021. Rec. Doc. 101; see also Cortez v. Lamorak Ins. Co., No. 20-2389, 2022 WL 1595837, at [*1] (E.D. La. May 19, 2022). On January 7, 2022, Bossier, Jr.'s counsel filed a suggestion of death into the record of this case, which was electronically served to all counsel of record. Rec. Doc. 101; Rec. Doc. 173-1 at 1.

More than ninety days have passed since service of Bossier, Jr.'s suggestion of death, and no motion for substitution has been made. Accordingly, pursuant to Rule 25(a)(1), the Court must dismiss Bossier, Jr.'s cross claims against MW Custom. See Fed. R. Civ. P. 25(a)(1); Cortez, 2022 WL 1595837, at [*2] (dismissing Bossier, Jr.'s claims under identical circumstances); Sampson v. ASC Indus., 780 F.3d 679, 681 (5th Cir. 2015) (acknowledging that after "service of the statement noting death, a motion for substitution of the proper party must be made within ninety days or the action must be dismissed").

[1] Ameron International Corporation filed a similar motion on June 15, 2022, which is still pending before the Court. Rec. Doc. 174.

Sources

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