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McElhaney v. Kelly-Moore Paint Co.

Superior Court of Delaware, New Castle

August 14, 2013

ROBERT ANDREW MCELHANEY, Plaintiff,
v.
KELLY-MOORE PAINT CO., et al., Defendants

Submitted: July 26, 2013

TRIAL BY JURY OF TWELVE DEMANDED

Upon Defendant Kelly-Moore's Motion to Dismiss

Kara Hager, Esquire, Napoli Bern Ripka Shkolnik LLP, Wilmington, Delaware, Attorney for Plaintiff.

Armand Della Porta, Jr., Esquire, Ana Marina McCann, Esquire, Jessica L. Tyler, Esquire, and Sarah A. Roberts, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware, Attorneys for Defendant Kelly-Moore Paint Co.

DAVIS, J.

Introduction

This is a personal injury action brought by Plaintiff Robert Andrew McElhaney against multiple defendants including Defendant Kelly-Moore Paint Co. ("Kelly-Moore"). Mr. McElhaney alleges he was exposed to asbestos from products manufactured, distributed, sold, removed, installed or used by the defendants, including Kelly-Moore. Mr. McElhaney alleges that he developed and suffers from lung cancer as a result of that exposure. Mr. McElhaney believes he was exposed to asbestos from Paco, a compound product Kelly-Moore produced in the 1970s. Mr. McElhaney is a resident of Ohio and alleges he was exposed to asbestos in West Virginia. Kelly Moore is a California incorporation with a registered agent for service located in California. Before the Court is Kelly-Moore's Omnibus Motion to Dismiss for Lack of Personal Jurisdiction (the "Motion"). For the reasons stated in this Opinion, the Motion, as to Mr. McElhaney, is GRANTED.

Procedural Background

Kelly-Moore filed the Motion on August 9, 2012. Mr. McElhaney filed a Brief in Opposition to the Motion on October 5, 2012. The Motion was scheduled to be heard by the Court on August 30, 2012, September 13, 2012, January 10, 2013, February 14, 2013, and March 14, 2013. The Court was unable to hear the Motion on those dates due to either scheduling conflicts or an overabundance of scheduled asbestos motions to be heard on each date. On March 7, 2013, the Court granted a stay of proceedings pending resolution of the Motion.

The Motion was scheduled to be heard on April 11, 2013 when the Court determined it could resolve the Motion, in part, without need for a hearing. The Court advised counsel for the parties they need not appear. Upon reviewing the Brief in Opposition to the Motion, the Court found that Mr. McElhaney proffered competent evidence to demonstrate that jurisdiction over Kelly-Moore might exist, warranting a grant of limited discovery.[1] Accordingly, on April 19, 2013, the Court issued an Order granting Mr. McElhaney 60 days to conduct discovery for the limited purpose of determining jurisdictional ties of Kelly-Moore to Delaware.

On April 26, 2013, Kelly-Moore moved for reargument on the Motion. Kelly-Moore filed a supplemental correspondence on May 1, 2013. On June 17, 2013, the Court heard the Motion for Reargument, which it granted, and then allowed reargument on the Motion. The Court ordered Kelly-Moore to open its document repository to Mr. McElhaney's counsel and to respond to interrogatories. The Court also ordered Mr. McElhaney to provide supplemental briefing as to Kelly-Moore's amenability to jurisdiction upon completion of the limited jurisdictional discovery.

Mr. McElhaney filed a brief in opposition to the Motion on July 1, 2013. On July 2, 2013, Kelly-Moore filed a letter requesting the opportunity to file a reply brief. Despite the irregularity of such additional briefing, the Court allowed it given the issue and the expressed need of the attorneys to fully join, contest and argue the issue before the Court issued its decision on the Motion. On July 8, 2013, Mr. McElhaney requested to file a sur-reply if the Court allowed Kelly-Moore's request for a reply. Kelly-Moore filed its Reply Brief on July 9, 2013. Mr. ...


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