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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,
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.
RAYMOND P. MOORE, JUDGE
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.
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.
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.
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.
Motion for Leave to Amend
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.
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
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).
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