Viale v. Air & Liquid Systems Corp. (N.D. Cal., May 21, 2019)

Our plain-English summary of Viale v. Air & Liquid Systems Corp. (U.S. District Court, Northern District of California, May 21, 2019).

Debbie Viale, individually and as representative of the estate of Ronald Viale, and Amber Jacobs sued many companies, alleging that Mr. Viale was exposed to asbestos and asbestos-containing products at various work sites and developed mesothelioma, from which he died. The case was in federal court in Northern California after Foster Wheeler removed it, saying it had acted under the U.S. Navy and would raise the government contractor defense. The court had already denied remand. Plaintiffs asked to amend their complaint to delete the Navy from the list of employers and to state that they make no asbestos allegations against the named defendants for the period Mr. Viale served in the Navy. Foster Wheeler objected that the motion was untimely and prejudicial because it was entitled to a federal forum. The court granted the motion. It found the amendment was deemed filed on the date of the motion, before the deadline. It also found the forum concerns did not bear on whether the pleading could be filed. The court did not decide whether the amendment affected jurisdiction, because plaintiffs had not sought remand.

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 California
• Decided: May 21, 2019
• Docket: Case No. 19-cv-00038-MMC
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: California

Outcome. The court granted plaintiffs' motion for leave to file a Second Amended Complaint over Foster Wheeler's objection, and directed plaintiffs to file it by May 31, 2019.

What the court held. A proposed amended complaint is deemed filed on the date the motion for leave is filed, so the amendment was timely. The defendant's arguments about its federal forum went to the effect of the amendment on jurisdiction, not to whether the pleading could be filed.

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

The people and their exposure

• Ronald Viale: mesothelioma; died

Who	Work	Where	When	Products
Ronald Viale	served in the United States Navy (the Navy); military service	United States Navy

The defendants

• Foster Wheeler LLC (manufacturer)
• Air & Liquid Systems Corp. (manufacturer)
• Crane Co. (manufacturer)
• General Electric Company (manufacturer)

Other decisions in this case

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

• Viale v. Air & Liquid Systems Corp. (March 11, 2019). The court denied the plaintiffs' motion to remand, holding that Foster Wheeler and Air & Liquid Systems (successor to Buffalo Pumps) properly removed the case under the federal officer removal statute.
• Viale v. Air & Liquid Systems Corp. (July 3, 2019). The court denied the plaintiffs' renewed motion to remand, keeping the case in federal court against Foster Wheeler, Buffalo Pumps (Air & Liquid Systems), Calaveras, GE and the other defendants.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The district court granted Foster Wheeler LLC's motion for summary judgment against the plaintiffs, the widow and daughter of Ronald Viale, because they lacked admissible evidence that Viale was exposed to a Foster Wheeler product.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The court granted Union Carbide's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they offered no evidence that Ronald Viale was exposed to a product containing asbestos supplied by Union Carbide.
• Viale v. Air & Liquid Systems Corp. (July 7, 2020). The court granted Foster Wheeler's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they lacked admissible evidence that Ronald Viale was exposed to a Foster Wheeler boiler.
• Viale v. Air & Liquid Systems Corp. (July 7, 2020). The court granted SPX Cooling Technologies' motion for summary judgment against the plaintiffs (the wife and daughter of Ronald Viale) because they lacked evidence that Viale was exposed to asbestos from a Marley cooling tower.
• Viale v. Air & Liquid Systems Corp. (July 14, 2020). The court granted Exxon Mobil's motion for summary judgment against the wife and daughter of Ronald Viale, finding they lacked evidence that Exxon was negligent as a premises owner or hirer of contractors at the Benicia Refinery.

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.

DEBBIE L. VIALE, etal., Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORP., etal., Defendants.

Case No. 19-cv-00038-MMC.

May 21, 2019.

United States District Court, N.D. California.

Debbie L. Viale, Individually and as Personal Representative of the Estate of Ronald Viale, Deceased & Amber Jacobs, Plaintiffs, represented by Joshua Samuel Paul, The Paul Law Firm, Bryon Josselyn, The Paul Law Firm, Nectaria Belantis, The Paul Law Firm & Peter Christopher Beirne, The Paul Law Firm.

Air & Liquid Systems Corp, sued individually and as successor-in-interest to Buffalo Pumps, Inc., Defendant, represented by James G. Scadden, Gordon Rees Scully Mansukhani LLP, Glen R. Powell, Gordon Rees Scully Mansukhani LLP & Michael J. Pietrykowski, Gordon Rees Scully Mansukhani LLP.

Allied Packing & Supply, Defendant, represented by Theodore Thomas Cordery, Imai Tadlock Keeney & Cordery, LLP. AMEC Foster Wheeler USA Corporation, formerly known as Foster Wheeler Corporation, Defendant, represented by Charles S. Park, Hugo Parker, LLP & Edward R. Hugo, Hugo Parker, LLP.

Anheuser-Busch InBev Worldwide Inc, formerly known as Anheuser Busch Inc & Anheuser-Busch, LLC, Defendants, represented by Jonathan J. Kim, Alston Bird LLP, Cristyn Nicole Chadwick, Alston & Bird, LLP, Nell Gibson Moley, Alston & Bird LLP & Robert D. Phillips, Jr., Alston & Bird.

A.W. Chesterton Company, Defendant, represented by Anthony Sinclair Miller, Manning Gross + Massenburg LLP & Stephen Lindsay Jenkins, Manning Gross + MassenburgLLP.

CBS Corporation, successor by merger to CBS Corporation, a Pennsylvania corporation, Defendant, represented by Kevin Douglas Jamison, Kevin Jamison Law, PC, Erin Nicole Empting, Kevin Jamison Law, PC, Justin Finnell Cronin, Kevin Jamison Law, PC & Katherine Paige Gardiner, WFBM, LLP.

Calaveras Asbestos Ltd & Calaveras Natural Resources Inc, (sued individually and as successor-in-interest to and alter-ego to Calaveras Asbestos Ltd), Defendants, represented by Jennifer M. McCormick, Foley & Mansfield, PLLP, Andrew Livingston Sharp, Foley & Mansfield PLLP & Gary David Sharp, Foley and Mansfield.

Certainteed Corporation & Metalclad Insulation Corporation, Defendants, represented by Kathy Mai Huynh, Dentons US LLP, Lisa Lurline Oberg, Dentons US LLP & Michelle Christian Jackson, Dentons US LLP.

Chevron U.S.A. Inc. & Union Oil Company, Defendants, represented by Arpi Galfayan, Prindle, Goetz, Barnes and Reinholtz LLP, Andy Justin Goetz, Prindle, Goetz, Barnes and Reinholtz LLP, Michael Howard Schuck, Prindle, Goetz, Barnes and Reinholtz LLP & Thomas Alan Steig, Prindle, Goetz, Barnes & Reinholtz LLP.

Crane Co., Defendant, represented by Geoffrey M. Davis, K&L Gates LLP & Peter Edward Soskin, K&L Gates LLP. Elementis Chemicals Inc, formerly known as Hacros Chemical Inc sii to Harrisons & Crossfields (Pacific) Inc, Defendant, represented by Jennifer Denise Fitzpatrick, Dehay & Elliston, LLP.

Exxonmobile Corporation, Defendant, represented by Jennifer Denise Fitzpatrick, Dehay & Elliston, LLP & Susan A. Ogdie, DeHay & Elliston LLP.

General Electric Company, Defendant, represented by Derek S. Johnson, WFBM, LLP, Charles T. Sheldon, WFBM, LLP, Emily Elizabeth Anselmo, WFBM, LLP & Katherine Paige Gardiner, WFBM, LLP.

Goulds Pumps LLC, formerly known as Goulds Pumps Inc., Grinnell LLC, doing business as Grinnell Corp & Johnson Controls Inc, Defendants, represented by Amy Jo Talarico, Morgan Lewis & Bockius, LLP, Joseph Duffy, Morgan, Lewis & Bockius LLP & Michael Quinn Eagan, Jr., Morgan Lewis and Bockius LLP.

Keenan Properties Inc., formerly known as Keenan Supply, Defendant, represented by W. Joseph Gunter, CMBG3 Law LLC.

Metropolitan Life Insurance Company, Defendant, represented by Erika Aspericueta, Steptoe & Johnson LLP, Michael E. Flynn-O'Brien, Steptoe & Johnson LLP & Patrick Casey Mathews, Steptoe & Johnson LLP.

Shell Oil Company, Defendant, represented by Ross Morton Petty, Nixon Peabody LLP & Aaron Michael Brian, Nixon Peabody LLP.

SPX Cooling Technologies, Inc., successor in interest to Marley Cooling Tower, Defendant, represented by Michael Joseph Estrada, Vasquez & Estrada LLP.

Sterling Fluid Systems USA LLC, doing business as Indian Head Inc, Defendant, represented by Marissa Kacy Gittler, Pond North LLP, Eric Dean Sentlinger, Pond North LLP, Francis Dennis Pond, Pond North LLP, Frank D. Pond, Pond North LLP & Timothy Carter Pieper, Pond North LLP.

Trane USA, formerly known as America Standard Companies sii to American Blower Company, Defendant, represented by Arpi Galfayan, Prindle, Goetz, Barnes and Reinholtz LLP, Carla Lynn Crochet, Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholz LLP, Jeremy David Milbrodt, Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz LLP & Thomas Alan Steig, Prindle, Goetz, Barnes & Reinholtz LLP.

Union Carbide Corporation, Defendant, represented by Florence Anne McClain, Lewis Brisbois Bisgaard & Smith LLP. Foster Wheeler LLC, Defendant, represented by Charles S. Park, Hugo Parker, LLP.

ORDER GRANTING PLAINTIFFS' MOTION TO FILE SECOND AMENDED

COMPLAINT; DIRECTIONS TO PARTIES

Re: Dkt. No. 176

MAXINE M. CHESNEY, District Judge.

Before the Court is plaintiffs' Motion, filed April 26, 2019, "for Leave to File Amended Complaint." Defendant Foster Wheeler LLC ("Foster Wheeler") has filed opposition, to which plaintiffs have replied. Having read and considered the papers filed in support and in opposition to the motion, the Court deems the matter appropriate for determination thereon, VACATES the hearing scheduled for May 31, 2019, and rules as follows.

In the operative complaint, the Amended Complaint ("AC") filed November 7, 2018, plaintiffs assert eight causes of action, which claims are based on their allegations that decedent Ronald Viale "used, handled, or was otherwise exposed to asbestos and asbestos containing products provided by or manufactured by the defendants" and that he "contracted the terminal cancer, mesothelioma" as a result of such exposure and subsequently died. (See AC at 4:5-10.) Attached to the AC is a chart in which, under the statement "decedent's exposure to asbestos and asbestos containing products occurred at various locations both inside and outside the State of California," plaintiffs list a number of employers and, for each employer, to the extent known, the location of the worksite, the decedent's job title, and dates of employment. (See AC Ex. A.)

In plaintiffs' proposed amended pleading (hereinafter, "Proposed SAC"), plaintiffs seek to delete from the above-referenced chart one employer, specifically, the United States Navy, and to add in the body of the proposed pleading the following language: "The Plaintiffs' [sic] do not allege and expressly disclaim any and all allegation regarding asbestos against the Defendants named in this suit while Mr. Viale served in the United States Navy." (See Proposed SAC ¶ 11.) Foster Wheeler objects to the proposed amendment, on the ground it is untimely and prejudicial. As discussed below, the Court disagrees.

First, Foster Wheeler's reliance on the April 30, 2019 "deadline to amend pleadings" (see Pretrial Preparation Order, filed April 18, 2019) is unpersuasive. Foster Wheeler argues said deadline is the deadline to file an amended complaint, not the deadline to seek leave to amend. Where a court grants a motion for leave to amend, however, the proposed amended pleading is "deemed filed" on the date the plaintiff files the motion. See Mayes v. AT&T Information Systems, Inc., 867 F.2d 1172, 1173 (8th Cir. 1989) (holding, in determining whether new claim in amended complaint is barred by statute of limitations, where plaintiff seeks leave to amend prior to expiration of limitations period, amended complaint is "deemed filed" on that date, even though "entry of the court order and the filing of the amended complaint" occur after limitations period expires). Here, plaintiffs filed their motion for leave on April 26, 2019, and, should the Court grant the motion, the Second Amended Complaint would be deemed filed on that date.

Foster Wheeler next argues it would be prejudiced by the proposed amendment because, according to Foster Wheeler, it "is entitled to a federal forum for the adjudication of its federal defense" (see Def.'s Opp. at 2:19-20), and there is "uncertainty as to the scope of the [plaintiffs'] purported federal waiver" (see id. at 2:17-18).[1] These arguments, however, are not directed to the propriety of plaintiffs' filing the Proposed SAC, but, rather, to plaintiffs' assertion in their motion that the Proposed SAC "disclaim[s]" all "federal claims" such that "no federal issues exist." (See Pls.' Mot. at 1:27-28.) Plaintiffs, however, do not seek remand at this time, and consequently, the Court does not address herein whatever effect, if any, the filing of the Proposed SAC may have on the exercise of jurisdiction.

Accordingly, the motion for leave to amend will be granted, and plaintiffs may file an amended pleading in conformity with the directions set forth below.

CONCLUSION

For the reasons stated, plaintiffs' motion for leave to amend is hereby GRANTED.

Plaintiffs shall file their Second Amended Complaint no later than May 31, 2019. Said pleading shall be in the form of the proposed SAC, with the following revisions to the first page: (1) plaintiffs shall identify the court as "United States District Court, Northern District of California"; (2) plaintiffs shall title the document "Second Amended Complaint for Wrongful Death and Survival Actions — Asbestos"; and (3) plaintiffs shall include the federal case number, i.e., Case No. 19-cv-00038 MMC. See Civil L.R. 3-4(a).

Lastly, as the proposed SAC does not add any new claims or allegations, all answers filed in response to the AC shall be deemed responsive to the SAC. Any defendant that wishes to file an answer to the SAC, however, shall do so within fourteen days of the filing of the SAC.

IT IS SO ORDERED.

[1] Foster Wheeler removed the instant action pursuant to 28 U.S.C. § 1442(a)(1), asserting that, when engaging in the conduct challenged by plaintiffs, Foster Wheeler was "acting under an officer or agency of the United States," specifically, the United States Navy (see Notice of Removal ¶ 6), and that it would pursue "the government contractor defense" (see id. ¶¶ 8-9). By order filed March 11, 2019, the Court denied plaintiffs' motion for remand, finding removal under § 1442(a)(1) was proper.

Sources

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