Judge warns asbestos defendants of filing baseless motions

By Heather Isringhausen Gvillo | Apr 8, 2014

ST. LOUIS (Legal Newsline) - Several defendants in a Mississippi man's asbestos lawsuit were denied dismissal for filing "generic, baseless motions."

In an April 1 order, Judge Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri denied the requests for dismissal for failing to support their arguments with legal memoranda, calling them "bare bones motions."

"I warn all parties, however, that I will not tolerate generic, baseless motion practice designed to delay or to multiply the proceedings," Perry wrote.

Nearly all of the motions sought dismissal alleging plaintiffs Edna and James Harrell failed to state a claim and requested a more definitive statement of claims against them.

However, Perry wrote that after reviewing the complaint in light of government federal standards, she found it adequately stated claims against the defendants.

Perry also found that the Herrells are not required to file more definitive statements of their claims because the complaint was not found to be "so unintelligible, vague, or ambiguous such that the defendants cannot reasonably frame a response."

"The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of is claim," she added. "A viable complaint must include 'enough facts to state a claim to relief that is plausible on its face.'"

According to the lawsuit, James Harrell developed an asbestos-related illness through occupational and bystander exposure while working as an aviation electronics technician. He worked with asbestos while in the U.S. Navy from 1965 to 1989 and as a supervisor at Sikorsky Aviation in Meridian, Miss., From 1989 to 2004.

He alleges he was also exposed to asbestos from brakes, clutches and gaskets while performing auto repairs at his home from 1965 to 2011.

James Harrell was diagnosed with an asbestos-related illness on Feb. 25, 2011.

Perry also ordered that any future motions must be in accordance with Federal Rules of Civil Procedures as well as "ethical obligations to this court."

Citing Federal Rule of Civil Procedure 12, Perry wrote that motions to dismiss under this rule are designed to strike at unintelligible allegations rather than desire for more detail.

According to Rule 12, "a party may move for a more definitive statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response."

Perry also addressed defendant United Technologies Corporation's motion to join defendant Northrop Grumman System Corporation's notice of removal, granting the motion for joinder.

United Technologies claims it has an independent right to removal under the federal officer removal statute, which allows for removal of a civil action by the United States, national agency or officer. However, those seeking removal under this statute must show that it is acting under a federal officer, the conduct for which it is being sued was done under the federal office and a proper defense is raised.

United claimed removal was proper under the federal officer statute because the plaintiffs alleged the asbestos exposure stemmed from United Technologies' aircraft engines while James Harrell served in the U.S. Navy.

United provided an affidavit supporting its allegations that its design aircraft engine design was under the direction of federal officers. It further argues that the U.S. Supreme Court's Boyle decision provides defendants the opportunity to assert government contractor immunity when appropriate.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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