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Mestas v. Air & Liquid Systems Corporation

United States District Court, D. Colorado

March 19, 2019

RICHARD A. MESTAS, SR., and LORI ANN MUSE, Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORPORATION a/k/a Buffalo Pumps, Inc., AURORA PUMP COMPANY, BORGWARNER MORSE TEC, LLC, sued individually and as successor by merger to Borg-Warner Corporation, BRYAN STEAM, LLC, BURNHAM, LLC a/k/a Burnham Commercial, BW/IP INC., CBS CORPORATION f/k/a Viacom Inc., merger to CBS Corporation f/k/a Westinghouse Electric Corporation, sued individually and as successor-in-interest to Westinghouse Electric Corporation, CERTAINTEED CORPORATION, CLEAVER-BROOKS, INC. f/k/a Cleaver-Brooks, a division of Aqua-Chem, Inc., CRANE CO., sued individually and as successor-in-interest to Cochrane, Inc. a/k/a Jenkins Valves, Inc., CROWN CORK & SEAL COMPANY, INC., FLOWSERVE CORPORATION, sued individually and as successor-in-interest to BW/IP International Inc. f/k/a Byron Jackson Pump Division, FMC CORPORATION, sued as successor of Northern Pumps and Peerless Pumps, GARDNER DENVER, INC., GENERAL ELECTRIC COMPANY, GENUINE PARTS COMPANY a/k/a NAPA, sued individually and d/b/a Rayloc Brakes, GRINNELL, LLC, HONEYWELL INTERNATIONAL INC. f/k/a Allied-Signal, Inc., sued as successor-in-interest to Bendix Corporation, INGERSOLL-RAND COMPANY, ITT GOULDS PUMPS, LLC, JOHN CRANE INC., LAMONS GASKET COMPANY, METROPOLITAN LIFE INSURANCE COMPANY, PEERLESS BOILERS d/b/a PB Heat, LLC, RILEY POWER INC., RITE ENGINEERING & MANUFACTURING CORPORATION, SUPERIOR BOILER WORKS, INC. TRANE US, INC. f/k/a American Standard, Inc., UNION CARBIDE CORPORATION, U.S. ENGINEERING COMPANY, VIKING PUMP, INC., WARREN PUMPS, LLC, and WEIL-MCCLAIN, Defendants.

          ORDER

          RAYMOND P. MOORE, JUDGE

         This matter is before the Court on the January 29, 2019, Recommendation of United States Magistrate Judge Nina Y. Wang (ECF No. 288) to grant in part and deny in part a motion to dismiss filed by Defendant John Crane Inc. (“JCI”) (ECF No. 154) and joined by twenty other Defendants (collectively, “the moving Defendants”) (ECF Nos. 195, 196, 197, 210, 267). Defendants Cleaver-Brooks, Inc., Air & Liquid Systems Corporation, and Warren Pumps, LLC (collectively, “the objecting Defendants”) filed an objection to the magistrate judge's recommendation (ECF No. 289), and Plaintiffs filed a response to the objection (ECF No. 300). The recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiffs' motion for leave to amend the complaint (ECF No. 212) has been fully briefed (ECF Nos. 214-225) and is also before the Court. For the reasons given below, the Court denies the motion to amend, accepts and adopts the recommendation, overrules the objection, and grants in part and denies in part the motion to dismiss.

         I. INTRODUCTION

         No party objected to the magistrate judge's statement of the background, so the Court incorporates that portion of the recommendation herein. In summary, Plaintiffs allege that Plaintiff Mestas' mesothelioma was caused by his exposure to asbestos. They allege that Plaintiff Mestas' father was exposed to asbestos at work and carried it home on his clothing, which in turn exposed Plaintiff Mestas to it from 1953 to 1974. They also allege Plaintiff Mestas was directly exposed to asbestos-containing products when he performed maintenance on his personal vehicles from 1968 to 1992. Plaintiff Muse seeks damages for loss of consortium.

         In the complaint, Plaintiffs assert that all Defendants except Metropolitan Life were negligent in selling or requiring work around products containing asbestos without warning users of the dangers or promulgating safe-handling instructions. They also allege those Defendants were grossly negligent for engaging in a pattern or practice intentional wrongful conduct. Plaintiffs assert that Defendants who supplied the products (Genuine Parts Company and Union Carbide Corporation) misrepresented the safety of products Plaintiff Mestas used. Plaintiffs also assert claims for breach of warranty and strict liability against Defendants that sold asbestos-containing products. And Plaintiffs assert a negligence claim against Metropolitan Life for its failure to exercise reasonable care when performing testing services on behalf of the other Defendants.

         II. DISCUSSION

         Because granting the motion to amend would moot the motion to dismiss, the Court first addresses the motion to amend. The order then addresses the magistrate judge's recommendation on JCI's motion to dismiss.

         A. Motion for Leave to Amend

         Plaintiffs filed their complaint in the City and County of Denver District Court for the State of Colorado. Defendant General Electric Company (“GE”) removed the case on the basis of diversity jurisdiction under 28 U.S.C. § 1332. (ECF No. 1.) Plaintiffs then filed a first amended complaint (ECF No. 182) and a motion to remand to state court (ECF No. 183). The Court struck the first amended complaint as untimely and denied the motion to remand as moot. (ECF No. 211.)

         Plaintiffs then filed a motion to for leave to amend the complaint (ECF No. 212), seeking to join four parties to the suit. Plaintiffs allege that the absent parties caused Plaintiff Mestas' additional exposure to asbestos, either directly or indirectly through his father's exposure. Plaintiffs first argue the absent parties are necessary and indispensable, requiring their joinder under Fed.R.Civ.P. 19. In the alternative, Plaintiffs argue the absent parties' joinder should be permitted under Fed.R.Civ.P. 20. Various Defendants have filed or joined motions opposing Plaintiffs' motion, arguing that Plaintiffs are seeking to join non-diverse defendants merely to defeat federal jurisdiction.

         1. Legal Standards

         Generally, leave to amend a complaint should be given freely “when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, when a case has been removed to federal court and a plaintiff seeks to amend a complaint by joining additional defendants whose joinder would destroy subject matter jurisdiction, the court may either (1) deny joinder or (2) permit joinder and remand the action to state court. 28 U.S.C. § 1447(e).

         Fed. R. Civ. P. 19 requires joinder if a party is “indispensable.” McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008). Whether an absent party must be joined for a suit to proceed requires a two-part analysis. First, the court must determine whether the ...


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