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In re Asbestos Litigation

United States District Court, D. Delaware

April 9, 2018

IN RE: ASBESTOS LITIGATION
v.
ALFA LAVAL, INC., et al. Defendants. ICOM HENRY EVANS, and JOHANNA ELAINE EVANS, Plaintiffs,

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action is plaintiffs Icom Henry Evans ("Mr. Evans") and Johanna Elaine Evans' (together, "Plaintiffs") motion for reconsideration of defendants Foster Wheeler Energy Corporation ("Foster Wheeler") and Warren Pumps LLC's ("Warren Pumps") (together, "Defendants") motions for summary judgment in light of an intervening change in controlling law. (D.I. 219)[1] For the reasons that follow, the court recommends DENYING Plaintiffs' motion for reconsideration.

         II. BACKGROUND

         On June 11, 2015, Plaintiffs originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Evans' alleged harmful exposure to asbestos. (D.I. 1, Ex. A) On August 4, 2015, the case was removed to this court by Foster Wheeler pursuant to 28 U.S.C. §§ 1442(a)(1), the federal officer removal statue, [2]and 1446. (D.I. 1) On October 7, 2016, Foster Wheeler filed a motion for summary judgment. (D.I. 158) On October 13, 2016, Warren Pumps filed a motion for summary judgment. (D.L 171) Plaintiffs opposed the motions. (D.L 177; D.I. 179) The court held oral argument on the motions on January 23, 2017.

         On August 30, 2017, the court issued a Report and Recommendation ("R&R"), recommending that Defendants' motions for summary judgment be granted pursuant to maritime law. (D.I. 212) The R&R recommended granting Foster Wheeler's motion for summary judgment because Plaintiffs failed to show that a material issue of fact existed as to whether Foster Wheeler's product was a substantial factor in causing Mr. Evans' injuries.[3] (Id. at 9) Specifically, the R&R first found that although Foster Wheeler product identification aboard the USS Bole was established, the evidence in the record failed to create a material issue of fact concerning the substantial exposure requirement. (Id. at 11) After reaching such a conclusion, the R&R also found that application of the bare metal defense[4] warranted summary judgment in Foster Wheeler's favor because Plaintiffs failed to show that a material issue of fact existed as to whether Foster Wheeler provided any asbestos-containing components to be used with its boilers aboard the USS Bole. (Id. at 13)

         The R&R recommended granting Warren Pumps' motion for summary judgment because Plaintiffs failed to show that a material issue of fact existed as to whether Warren Pumps' product was a substantial factor in causing Mr. Evans' injuries. (Id. at 16) Specifically, the R&R first concluded that Plaintiffs did not establish Mr. Evans' exposure to an asbestos-containing product manufactured by Warren Pumps aboard the USS Kearsarge or USS Bole. (Id. at 17-18) After reaching such a conclusion, the R&R also found that application of the bare metal defense warranted summary judgment in Warren Pumps' favor, because Plaintiffs failed to show that a material issue of fact existed as to whether Warren Pumps manufactured and supplied asbestos-containing pumps for the USS Kearsarge and the USS Bole. (Id. at 20)

         Plaintiffs did not object to the court's R&R. On September 26, 2017, Judge Eduardo C. Robreno adopted the court's R&R and granted Defendants' motions for summary judgment. (D.I. 217)

         On October 3, 2017, the Third Circuit issued its opinion in In re: Asbestos Prod. Liab. Litig. (Devries), 873 F.3d 232 (3d Cir. 2017). In Devries, the court held that the bare metal defense is not an absolute bar to a plaintiffs negligence claim under maritime law. Rather, the Third Circuit held that a manufacturer of a "bare metal" product may be held liable for injuries sustained from later-added asbestos-containing materials, if the facts show that the plaintiffs injuries were a reasonably foreseeable result of the manufacturer's failure to provide a reasonable and adequate warning. Devries, 873 F.3d at 240. On November 8, 2017, Plaintiffs filed the pending motion for reconsideration as a result of the Devries decision. (D.I. 219)

         III. LEGAL STANDARD

         The Federal Rules of Civil Procedure do not mention either motions for reconsideration or reargument. See Brambles USA, Inc. v. Blocker, 735 F, Supp. 1239, 1241 (D. Del. 1990). Courts often treat such motions as motions to alter or amend a judgment, authorized by Federal Rule of Civil Procedure 59(e).[5] Flash Seats, LLC v. Paciolan, Inc., No. CIV. 07-575-LPS, 2011 WL 4501320, at *1 (D. Del. Sept. 28, 2011), aff'd, 469 Fed.Appx. 916 (Fed. Cir. 2012) (citing Silva Rivera v. State Ins. Fund Corp., 488 F.Supp.2d 72, 77 (D.P.R. 2007) ("[A]ny motion seeking the reconsideration of a judgment or order is considered as a motion to alter or amend a judgment under [Rule] 59(e) if it seeks to change the order or judgment issued ....")). "A motion for reconsideration under [District of Delaware] Local Rule 7.1.5 which is timely filed and challenges the correctness of a previously entered order is considered the 'functional equivalent' of a motion to alter or amend a judgment pursuant to Rule 59(e)." In re DaimlerChrysler AG Sec. Lit., 200 F.Supp.2d 439, 442 (D. Del. 2002); see also New Castle County v. Hartford Accident and Indemnity Co., 933 F.2d 1162, 1176-77 (3d Cir. 1991); Jones v. Pittsburgh National Corp., 899 F.2d 1350, 1352 (3d Cir. 1990). Local Rule 7.1.5 provides that "[i]f a party chooses to file a motion for reargument, said motion shall be filed within 14 days after the Court issues its opinion or decision, with the exception of motions filed pursuant to [Rule] 5.9(e), which ' shall be filed in accordance with the time limits set forth in [Rule] 59(e)." Rule 59(e) provides that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment."

         The purpose of a motion for reconsideration is "to correct manifest errors of law or fact or to present newly discovered evidence." In re DaimlerChrysler, 200 F.Supp.2d at 442 (citing Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). Motions for reargument or reconsideration may not be used to rehash arguments which have already been briefed, considered and decided. Id. (citing Brambles, 735 F.Supp. at 1240). As such, a court may only alter or amend its judgment if it is presented with: (1) a change in the controlling law; (2) newly available evidence; or (3) the need to correct a clear error of law or fact to prevent manifest injustice. Max's Seafood, 176 F.3d at 677. Motions for reconsideration or reargument are to be granted only sparingly. D. Del. LR 7.1.5. The decision to grant such relief lies squarely within the discretion of the district court. Flash Seats, 2011 WL 4501320, at *2 (citing Dentsply Int'l, Inc. v. Kerr Mfg. Co., 42 F.Supp.2d 385, 419 (D. Del. 1999)).

         IV. DISCUSSION

         The court recommends denying Plaintiffs' motion for reconsideration because it is untimely.[6] The court entered its order granting Defendants' motions for summary judgment on September 26, 2017. (D.I. 217) Treating Plaintiffs' motion as a motion under Rule 59(e), as required "by Local Rule 7.1.5, Plaintiffs had until October 24, 2017 - 28 days later - to file their motion. The Third Circuit issued its Devries opinion on October 3, 2017. See Devries,873 F.3d 232. Plaintiffs did not file the present motion until November 8, 2017 - 43 days after the court's order granting summary judgment, and 36 days after the Devries opinion was published. (D.I. 219) Plaintiffs do not address the time constraints imposed by Rule 59(e) in their motion, [7] do not identify the date of the Devries decision, and do not attempt to present a "good cause" reason for their ...


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