Abar v. ACandS, Inc.
| Decision Date | 17 November 1995 |
| Docket Number | 94-55677,Nos. 94-55624,s. 94-55624 |
| Citation | 83 F.3d 426 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Norman D. ABAR; Horace J. Abbott; Vance Abel; Clarence Abner; Earl Adams, et al., Plaintiffs-Appellants, v. ACANDS, INC.; ACMC, fka National Gypsum Company; Acme Brick Company; Acorn Iron and Supply Co.; Allis-Chalmers Corporation; et al., Defendants-Appellees. Creighton E. MILLER, Administrator for the Estate of Isaac W. Abraham, et al., Plaintiff-Appellant. v. ACANDS, INC.; ACMC, fka National Gypsum Company; Acme Brick Company; Anchor Packing Co.; Aurora Pump Division of General Signal Corp.; Bethlehem Steel Corporation; Bigelow-Liptak Corporation; Bryan Steam Corp.; Coffin Pump Inc.; Crown, Cork and Seal Co., Inc.; Dana Corp.; Donlee Technologies, Inc.; Durabla Manufacturing Co.; Everlasting Valve Co.; Fel-Pro Incorporated; Fibreboard Corporation; General Cable Co.; B.F. Goodrich; Goodyear Tire & Rubber Co.; Ingersoll-Dresser Pump; John Crane Inc.; Mortell Co.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; USX Corporation; Warren Pumps, Inc.; Pittsburgh Corning Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: BRUNETTI and KOZINSKI, Circuit Judges, and HAGEN, ** District Judge.
The plaintiff mariners in the above cases filed two identical complaints on July 27, 1993 alleging injuries stemming from asbestos exposure. In Miller, an administrator of the estates of 370 decedents brought suit against 93 defendants involved in some phase of the production of either asbestos or products containing asbestos. In Abar, 994 plaintiffs brought suit against the same 93 defendants.
In 1991, the United States District Court for the Eastern District of Pennsylvania removed the maritime claims from the Multidistrict Litigation ("MDL") asbestos docket and created a separate maritime asbestos docket. The court appointed Leonard C. Jaques, plaintiffs' counsel in the instant cases, as "lead and liaison counsel" of all maritime asbestos claims. Defendants note that during the same week in July of 1993 in which the Miller and Abar claims were filed, plaintiffs' counsel filed identical complaints in five other federal district courts on behalf of 5000 additional claimants. Prior to the dismissal of the Abar and Miller complaints, the Judicial Panel on Multidistrict Litigation issued a conditional transfer of Abar and Miller to the Eastern District of Pennsylvania. In response to the dismissal, the Panel vacated its order.
The Abar and Miller complaints asserted admiralty and diversity jurisdiction. On appeal, plaintiffs only assert admiralty jurisdiction. The complaints allege that the defendants:
designed, manufactured, sold or otherwise supplied for use of shipowners aboard vessels harmful toxins and carcinogens including asbestos and asbestos-containing products or machinery and equipment on which the asbestos products were placed ... on vessels upon which Plaintiffs or Plaintiff's [sic] Decedents served during periods of time when the respective mariners as crewmen were exposed to their detriment to the afore-stated chemicals and products, suffering injury to their person or death of their being as the case may have resulted.
The complaints do not further specify any time or place for the injuries or any connection between specific plaintiffs and specific defendants.
Defendants brought motions to dismiss and the district court concluded that the plaintiffs were improperly joined and dropped all but the first named plaintiff in each complaint, and then dismissed the complaints for failure to comply with the pleading requirements of Fed.R.Civ.P. 8(a). The court found that the plaintiffs 1) failed to provide enough specific details to establish admiralty jurisdiction and 2) failed to provide enough specific details to comply with the requirements of Rule 8(a)(2). The court granted the motions to dismiss both complaints on January 18, 1994 and on January 21, 1994 issued an order to dismiss with leave to amend. Rather than file amended or separate complaints, plaintiffs filed motions for relief from the judgment of dismissal pursuant to Rule 60(b)(6). The district court's denials of the Miller and Abar motions were entered on March 18 and 21, 1994, respectively. Plaintiffs filed notices of appeal on April 14 in Miller and April 15 in Abar. In response to defendants' arguments that their notices were untimely, plaintiffs maintained that they were only appealing the denial of the motions for relief.
Review of motions for relief pursuant to Rule 60(b) "does not bring up the underlying judgment for review; we review only for abuse of discretion." Cel-A-Pak v. California Agric. Labor Relations Bd., 680 F.2d 664, 668 (9th Cir.1982). Relief under Rule 60(b) is only available when "extraordinary circumstances prevented a litigant from seeking earlier, more timely relief ... circumstances beyond its control...." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.1993). See also In re Pacific Far East Lines, Inc., 889 F.2d...
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