Jenkins v. Armstrong World Industries, Inc.
| Decision Date | 21 May 1985 |
| Docket Number | 84-4081 and 83-4056.,84-4072,Civ. No. 83-4055,83-4057 |
| Citation | 643 F. Supp. 17 |
| Parties | Leroy C. JENKINS and Mary Ellen Jenkins, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. Mary Ellen JENKINS, individually and as Personal Representative of the Heirs and Estate of Leroy C. Jenkins, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. Henry C. MEYERS and Merle C. Meyers, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. Henry C. MEYERS and Merle C. Meyers, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. Fred J. BELISLE and Anona Belisle, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC. (successor to Armstrong Cork Company), et al., Defendants. |
| Court | U.S. District Court — District of Idaho |
Clark Gasser, Steve Richert, Green, Service, Gasser & Kerl, Pocatello, Idaho, Russell
W. Budd, Frederick M. Baron & Associates, P.C., Dallas, Tex., for plaintiffs.
John L. King, Boise, Idaho, Richard B. Evans, Sarah B. Howden, Gudmundson, Siggins & Stone, San Francisco, Cal., for Armstrong World Industries, Inc.
Gary T. Dance, N. Randy Smith, Merrill & Merrill, Chartered, Pocatello, Idaho, for Celotex Corp.
Charles Johnson III, L. Charles Johnson, Johnson and Olson, Chartered, Pocatello, Idaho, for Crown Cork & Seal Co., Inc.
Michael W. Moore, Imhoff & Lynch, Boise, Idaho, for Owens Corning Fiberglass Corp.
Christopher Burke, Clemons, Cosho & Humphrey, Boise, Idaho, Donald J. Roberts, Gabriel A. Jackson, Winingham, Roberts, Rogie & Fama, San Francisco, Cal., for Eagle-Picher Industries, Inc.
Jeremiah A. Quane, Alan Hull, Jon Carter, Quane, Smith, Howard & Hull, Boise, Idaho, for Fibreboard Corp.
Louis F. Racine, Jr., Gary L. Cooper, Racine, Olson, Nye, Cooper & Budge, Chartered, Pocatello, Idaho, for Forty-Eight Insulations, Inc.
Allen B. Ellis, Jon M. Steele, Ellis, Brown, Sheils & Steele, Boise, Idaho, for Keene Corp.
Ron B. Rock, Robert C. Grisham, Moffatt, Thomas Barrett & Blanton, Chartered, Boise, Idaho, for Nicolet, Inc.
Craig L. Meadows, Wayne B. Slaughter, Edwin V. Apel, Jr., Hawley, Troxell, Ennis & Hawley, Boise, Idaho, for GAF Corp.
Carl P. Burke, Charles L. Hay, Elam, Burke, Evans, Boyd & Koontz, Boise, Idaho, for Owens-Illinois, Inc.
Ronald P. Rainey, David E. Kerrick, Alexanderson, Davis, Rainey, Whitney & Kerrick, Caldwell, Idaho, for Pittsburgh Corning Corp.
Steven R. Matthews, Brady, McDaniel & Matthews, Chartered, Boise, Idaho, for Raymark Industries, Inc.
J. Frederick Mack, Langroise, Sullivan & Smylie, Boise, Idaho, for Standard Insulations, Inc.
Before the Court is the joint motion for summary judgment of the defendants in the following five cases: Meyer v. Armstrong World Industries, Inc., Civil No. 83-4057 (Meyer I) and 84-4081 (Meyer II); Jenkins v. Armstrong World Industries, Inc., Civil No. 83-4055 (Jenkins I) and 84-4072 (Jenkins II); and Belisle v. Armstrong World Industries, Inc., Civil No. 83-4056 (Belisle). Counsel presented oral argument on this matter on February 25, 1985, and the Court has reviewed the memoranda submitted and all other matters filed on this case.
These five cases involve asbestos-related injuries. All five involve similar facts and identical questions of law. In each case, the plaintiff, or deceased spouse of the plaintiff, was exposed to asbestos products during the course of his employment. Of the three plaintiffs, only one, Henry C. Meyer, is living.
Pursuant to this motion, the defendants filed a joint statement of facts to which plaintiffs have stipulated. In this statement, the defendants set out the last date on which each plaintiff or deceased spouse was exposed to asbestos and the date on which suit was filed in this Court, in the United States District Court for the Northern District of Texas, and the dates of transfers from Texas to this district:1
Plaintiff Last Exposure Suit Filed/Transferred
Meyer February 1979 Idaho: 3/21/83
Texas: 10/12/83 (trans to Idaho 6/7/84)
Jenkins September 1979 Idaho: 3/21/83
Texas: 10/13/83 (trans. to Idaho 5/24/84)
Belisle 1945 Idaho: 3/21/83
Texas: 10/14/83 (trans. to Idaho still pending)
From the statement of facts it appears that most or all of the deceased and/or plaintiffs are Idaho residents and that the last exposure to asbestos occurred in Idaho—with the exception of Mr. Belisle, whose last and only exposure was in the State of Washington.
Important to the joint motion before the Court is the procedural history of these five cases. Of these five cases, three, Meyer I, Jenkins I and Belisle, were originally filed in this Court on March 21, 1983. After answering the complaint, all of the defendants moved for summary judgment based on the running of the Idaho statute of limitations. Extensive discovery was done as to this issue by the parties. Before these motions could be ruled on, however, plaintiffs moved to voluntarily dismiss in all three cases. The defendants objected, requesting the Court to rule on their motions for summary judgment, or in the alternative, asking the Court to award them their costs and attorneys fees if voluntary dismissal were granted. In an order dated May 15, 1984, the Court granted the plaintiffs' motions on the condition that they pay the defendants' entire costs and expenses except for attorneys fees. Plaintiffs submitted a memorandum in opposition to this, claiming that because the defendants would be able to use much of the discovery product generated here in the Texas lawsuits which they soon planned to file based on the same causes of action, it would be unfair to charge the plaintiffs for those costs. As of this date, the plaintiffs have not paid the defendants' costs and the Court, as a result, has not dismissed the three cases. Thus, plaintiffs' motions to dismiss in these three cases remain in limbo, as do the defendants' motions for summary judgment.
During the above dispute over costs, the same three lawsuits were filed in the federal court for the Northern District of Texas by these same three plaintiffs. Several months later, the judge handling the Meyer case found this district, the District of Idaho, to be a more convenient forum and transferred it here under 28 U.S.C. § 1404(a), the forum non conveniens statute. In his order dated June 7, 1984, Judge William M. Taylor stated that the only connect on the case had with Texas was that plaintiffs' counsel had his offices there.2 Near the same time, Judge Robert M. Hill from the same Northern District of Texas transferred the Jenkins case to this district. In his order dated May 24, 1984, Judge Hill referred to the "absolute lack of connection between this forum Texas and the plaintiff." As yet, the Belisle case has not been transferred here.
To summarize, now pending before this Court are the three cases originally filed in this district: Meyer I, Jenkins I and Belisle. Also pending before this Court are two cases transferred here from the Northern District of Texas: Meyer II and Jenkins II, making a total of five cases before the Court on this motion.
The Court turns first to the three cases originally filed and still pending in this district: Meyer I, Jenkins I and Belisle. These three cases are governed by this Court's recent ruling in Adams v. Armstrong World Industries, Inc., 596 F.Supp. 1407 (D.Idaho 1984), in which the Court held, on basically identical facts, that the plaintiffs' case was barred by the running of the statute of limitations on the deceased's cause of action and the consequent failure of a condition precedent to the plaintiffs' wrongful death action. The Court will abide by its ruling in Adams, supra, and based on that decision will grant summary judgment as to Meyer I, Jenkins I and Belisle, the three original Idaho actions.3 As to these three cases, the Court will grant costs to the defendants, but only those costs normally awarded to prevailing parties in this Court, rather than the expanded award of costs originally contemplated in the Court's conditional order dated May 15, 1984.
The Court turns next to the two cases transferred to this district from Texas, Meyer II and Jenkins II. Meyer II is a personal injury action; Jenkins II is a wrongful death action. The defendants argue that Idaho law, rather than Texas law, should govern these two cases. The defendants cite the landmark United States Supreme Court case of Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), which held that, generally speaking, when one federal court sitting in diversity transfers to another under 28 U.S.C. § 1404(a), the law of the state of the transferor court applies. The defendants argue that the rationale stated in Van Dusen was that of preventing § 1404(a) from becoming a means of forum shopping. In other words, the Van Dusen court asserted that parties, by using a § 1404(a) transfer should not "get a change of law as a bonus for a change of venue." Defendants contend that the plaintiffs' tactics in filing first in Idaho, attempting to dismiss when they discovered Idaho's unfavorable statute of limitation, then filing identical actions in Texas — with the consequent transfer to Idaho — is nothing more than blatant forum shopping. Defendants claim that the plaintiffs are Idaho residents, the asbestos exposure occurred substantially in Idaho, the treating doctors and other witnesses are located in Idaho and Utah or elsewhere, but none of the above are located in Texas. Thus, defendants argue that Van Dusen's general rule does not apply in the present case.
In the alternative, defendants claim that even if this Court does look to Texas law, that state's choice of law rules would still...
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