Free Motion to Stay - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IN RE: ASBESTOS LITIGATION: FREDERICK SEITZ and MARY LOUISE SEITZ, his wife Plaintiffs -vs.ADEL WIGGINS GROUP, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 08-353

______________________________________________________________________________ DEFENDANT NORTHROP GRUMMAN CORPORATION' S MOTION FOR STAY OF PROCEEDINGS AND FOR EXTENSION OF TIME TO ANSWER OR OTHERWISE PLEAD Defendant Northrop Grumman Corporation ("Northrop Grumman"), through its attorneys, respectfully moves this Honorable Court to stay all proceedings in this case pending a ruling by the Judicial Panel on Multidistrict Litigation on transfer of the above-captioned matter to the Eastern District of Pennsylvania as part of the In re Asbestos Products Liability Litigation, Docket No. MDL-875 ("MDL-875. Northrop Grumman has concurrently asked the Judicial Panel on Multidistrict Litigation to transfer the action herein to the Eastern District of Pennsylvania as part of MDL-875. As set forth more fully in the accompanying supporting Memorandum, transfer of this matter to MDL-875 is likely because this matter concerns allegations of asbestos-related disease or injury stemming from exposure to asbestos products and inhalation of the products' asbestos fibers and because it shares many other common procedural and substantive issues with the actions pending in MDL-875.

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Accordingly, principles of expediency, efficiency, comity, and avoidance of the waste of this Court's time, energy, and resources, dictate that all proceedings before this Court in this matter should be stayed pending transfer to MDL-875. Similarly, and pursuant to Federal Rule of Civil Procedure 6(b), Northrop Grumman respectfully moves this Court for an order

extending the time Northrop Grumman has to answer or otherwise plead so that pretrial motions and answers related to the Complaint can be filed with and according to the established procedures of MDL-875. WHEREFORE, for the reasons stated above and more fully set forth in the accompanying Memorandum, Defendant Northrop Grumman Corporation respectfully moves this Court for an order staying all proceedings in this case pending a decision on transfer to MDL-875 from the MDL Panel.

ELZUFON AUSTIN REARDON TARLOV & MONDELL, P.A. /s/ Penelope B. O'Connell ____________________________________ Penelope B. O'Connell (DE #4898) 300 Delaware Avenue, Suite 1700 P.O. Box 1630 Wilmington, Delaware 19899 (302) 428-3181 Nancy Shane Rappaport (DE #3428) DLA PIPER US LLP 1650 Market Street, Suite 4900 Philadelphia, PA 19103 (215) 656-3357 Attorneys for Defendant Northrop Grumman Corporation Date: June 12, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IN RE: ASBESTOS LITIGATION: FREDERICK SEITZ and MARY LOUISE SEITZ, his wife Plaintiffs -vs.ADEL WIGGINS GROUP, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 08-353

______________________________________________________________________________ MEMORANDUM IN SUPPORT OF DEFENDANT NORTHROP GRUMMAN CORPORATION'S MOTION FOR STAY OF PROCEEDINGS AND FOR EXTENSION OF TIME TO ANSWER OR OTHERWISE PLEAD Defendant Northrop Grumman Corporation ("Northrop Grumman ") has asked the Judicial Panel on Multidistrict Litigation ("MDL Panel") to transfer this action to the Eastern District of Pennsylvania as part of In re Asbestos Products Liability Litigation, Docket No. MDL-875 ("MDL-875"). (See Notice of Tag Along Action attached as Exhibit 1).

Accordingly, Northrop Grumman respectfully moves that this Court stay all proceedings in this case pending the imminent transfer of this action to MDL-875, for the reasons discussed below. Additionally, pursuant to Federal Rule of Civil Procedure 6(b), Northrop Grumman moves this Court for an extension of time to answer or otherwise plead until seven (7) days after this case is transferred to MDL-875. I. INTRODUCTION Because many of the procedural and substantive issues in this action are identical to issues pending before the Honorable Judge James T. Giles of the United States District Court for

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the Eastern District of Pennsylvania in MDL-875, Northrop Grumman expects that the MDL Panel shortly will issue a transfer order mandating that this action become part of MDL-875 as a tag-along case. Given that the facts and issues between this action and MDL-875 are virtually identical, any ruling made by this Court in the interim period before transfer risks duplication and inconsistency with the parallel multidistrict proceeding that has been operating efficiently for the last fifteen (15) years. Therefore, as numerous judges of this and other courts have held, a stay of proceedings here pending transfer would be most appropriate. II. BACKGROUND OF MDL-875: IN RE ASBESTOS PRODUCTS LIABILITY LITIGATION________________________________________________________ The background of the asbestos-related litigation pending in MDL-875 is now wellestablished. In the early-1990's, members of the bench and trial bar agreed that asbestos-related litigation "reached a magnitude, not contemplated . . . , that threatens the administration of justice and . . . requires a new streamlined approach." In re Asbestos Prods. Liab. Litig. (VI), 771 F. Supp. 415, 418 (J.P.M.L. 1991). In recognition that individual cases could no longer be administered effectively by individual judges in separate federal cases, the MDL Panel concluded that "centralization of all federal asbestos personal injury/wrongful death actions, in the words of 28 U.S.C. § 1407(a), `will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions.'" Id. Specifically, pursuant to 28 U.S.C. § 1407, on July 29, 1991, the MDL Panel transferred to MDL-875 over 20,000 actions that involved common questions of fact relating to injuries or wrongful death allegedly caused by exposure to asbestos or asbestos-containing products. Id. The actions were transferred to the Eastern District of Pennsylvania before the Honorable Charles R. Weiner for coordinated or consolidated pretrial proceedings.

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Since that time, barring exceptional circumstances not present here, any cases pending in federal courts for claims of injury or wrongful death from asbestos are transferred to the Eastern District of Pennsylvania for pretrial proceedings before Judge Giles, the judge presiding over MDL-875, as a matter of course. Indeed, according to the Judicial Panel's docket page, there are currently 34,383 actions pending in MDL-875, and there have been 112,229 total actions transferred to MDL-875 since 1991. (See J.P.M.L. Docket attached as Exhibit 2). III. THE SEITZ ACTION WILL BE TRANSFERRED TO MDL-875 AS A TAG-ALONG ACTION______________________________________________ Northrop Grumman filed a Notice of Tag-Along Action with the MDL Panel informing it that this action is a tag-along action to MDL-875 pursuant to R.J.P.M.L 7.2(i), 7.3(a), 7.4 and 7.5(e) (See Exhibit 1). The MDL Panel may now enter a conditional transfer order transferring this action to MDL-875. Almost without exception, the MDL Panel issues transfer orders in asbestos-litigation when "the Panel finds that [the tag-along actions] involve common questions of fact with actions in this litigation previously transferred to the Eastern District of Pennsylvania for inclusion in the coordinated or consolidated pretrial proceedings occurring in that district" because transfer will "serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation." In re Asbestos Prods. Liab. Litig. (VI), 170 F. Supp. 2d 1348 (J.P.M.L. 2001). Indeed, numerous asbestos cases have been transferred without exception, underscoring the fact that transfer of a federal action for asbestos-related injury or wrongful death to MDL-875 is almost automatic regardless of the objection. See, e.g., In re Asbestos Prods. Liab. Litig. (No. VI), 170 F. Supp. 2d 1348 (granting transfer over objection that cases involving punitive damages should be excluded from MDL-875); In re Asbestos Prods. Liab. Litig. (No. VI), Nos. 875, C02-0194PJH, 2002 WL 1128268 (J.P.M.L. Apr. 3, 2002) (granting conditional transfer

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order and noting that since the formation of MDL-875, more than 72,201 actions have been transferred to MDL-875) (attached as Exhibit 3); In re Asbestos Prods. Liab. Litig. (No. VI), Nos. 875, 3:01-540, 3:10-1627, 1:00-1454, 2001 WL 1042562 (J.P.M.L. Aug. 29, 2001) (ordering transfer of cases to MDL-875 over objections that unique facts warranted exclusion from the MDL proceedings) (attached as Exhibit 4); In re Asbestos Prods. Liab. Litig. (No. VI), No. 875, 1996 WL 143826 (J.P.M.L. Feb. 16, 1996) (same) (attached as Exhibit 5). Indeed, the MDL Panel has rejected oppositions to transfer regardless of the pendency of motions or other matters before the transferor court, the uniqueness of a party's status, the type of defendant, the docket condition of any specific federal district, the stage of pretrial proceedings, the presence of unique claims or additional claims not related to asbestos-related injury or death, and/or the unanimity of opposition to transfer by the parties to an action. In re Asbestos Prods. Liab. Litig. (No. VI), 170 F. Supp. 2d at 1349. The policy favoring the transfers of asbestos cases is widely accepted. The MDL Panel also has found that transfer is necessary to avoid duplication of effort with unnecessary expenses by the parties, witnesses, and their counsel, to prevent inconsistent decisions in all pending federal personal injury or wrongful death asbestos actions not yet in trial, and for the just and efficient conduct of the litigation. In re Asbestos Prods. Liab. Litig., 771 F. Supp. at 421-22;

and In re Asbestos Prods. Liab. Litig., 1996 WL 143826, at * 1 (See Exhibit 5). It is against this backdrop that the Panel's decision enrolled in this litigation must be understood. First of all, our decision to order transfer is not unmindful of the fact that the impact of asbestos litigation varies from district to district, and that in some courts asbestos personal injury actions are being resolved in a fashion indistinguishable from other civil actions. It is not surprising, therefore, that parties and courts involved in such actions might urge that inclusion of their actions in multidistrict proceedings is inappropriate. The Panel, however, must weigh the interest of all of the plaintiffs and all of the defendants, and must consider

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multiple litigation as a whole in the light of the purposes of the law. In re Asbestos Prods. Liab. Litig., 771 F. Supp. at 420. Seitz is related to the other actions in MDL-875 in a number of respects. First and most importantly, the Seitzes' causes of action are based on the same factual predicates as other actions in MDL-875--namely, whether Frederick and Mary Louise Seitz suffered asbestosrelated injuries stemming from exposure to asbestos from products and premises or inhalation of asbestos fibers. Second, based on these allegations, the Seitzes assert the same causes of action as the plaintiffs in MDL-875, including negligence and strict liability. Third, like the plaintiffs in MDL-875, the Seitzes seek to recover compensatory and punitive damages for asbestos-related disease or injury. Under these circumstances, permitting Judge Giles (with his learned

experience in handling thousands of such cases) to decide such issues would promote judicial efficiency and avoid duplicative litigation efforts and the potential for inconsistent results. See, e.g., In re Ivy, 901 F.2d 7 (2d Cir. 1990); In re Air Crash Disaster at Fla. Everglades, 368 F. Supp. 812 (J.P.M.L. 1973). Until the MDL Panel transfers this action to the Eastern District of Pennsylvania, this Court should follow the lead of numerous other judges in this and other courts and grant Northrop Grumman's request for a stay of all proceedings. IV. A STAY IS APPROPRIATE UNDER THE CIRCUMSTANCES OF THIS CASE________________________________________________ The power to stay is well recognized. It is "incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). See also 7 B.C. Wright, A. Miller and M. Kane, FEDERAL PRACTICE AND PROCEDURE § 1792, at 293 (2d ed. 1986) ("[W]hen similar actions, either class or individual, are proceeding before several

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courts, one or more of the tribunals may stay the proceeding before it pending the outcome of the other action."); and MANUAL FOR COMPLEX LITIGATION § 31.14 3d ed. 1995 ("[I]n appropriate cases, a judge may order an action stayed pending resolution of a related case in a federal court."). A stay is particularly appropriate in the context of a multidistrict proceeding. Cases asserting redundant claims may be transferred by the MDL Panel to a single district for coordinated pretrial proceedings. 28 U.S.C. § 1407(a). Coordination furthers judicial economy and eliminates the potential for conflicting pretrial rulings. See, e.g., In re New York City Mun. Sec. Litig., 572 F.2d 49, 51-52 (2d Cir. 1978); In re Air Crash Disaster off Long Island, N.Y., 965 F. Supp. 5, 7 (S.D.N.Y. 1997). These benefits would be lost if individual cases proceeded pending the MDL Panel's transfer of the cases to a single judge. Indeed, "a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel because of the judicial resources that are curbed." Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997). Relying on similar reasons, numerous courts throughout the country have entered a stay of all proceedings pending a decision on transfer to an MDL proceeding. See, e.g., Aikins v. Microsoft Corp., Civ. A. No. 00-0242, 2000 WL 310391 (E.D. La. Mar. 24, 2000) (attached as Exhibit 6); Falgoust v. Microsoft Corp., No. 00-0779, 2000 WL 462919 (E.D. La. Apr. 19, 2000) (attached as Exhibit 7); Pacific Life Ins. Co. v. J.P. Morgan Chase & Co., No. Sa CV 03813GLT(ANX), 2003 WL 22025158 (C.D. Cal. June 30, 2003) (attached as Exhibit 8); Cantrell v. Wyeth, No. 303CV1659G, 2003 WL 22251079 (N.D. Tex. Sept. 19, 2003) (attached as Exhibit 9); Boudreaux v. Metropolitan Life Ins. Co., No. 95-138, 1995 WL 83788 (E.D. La. Feb. 24, 1995) (attached at Exhibit 10); Johnson v. AMR Corp., Nos. 95 C 7659-95 C 7664, 1996 WL

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164415, at * 4 (N.D. Ill. Apr. 3, 1996) (noting that the best course is grant a stay and let the MDL judge rule on the pending motions) (attached as Exhibit 11), Tench v. Jackson Nat'l Life Ins. Co., No. 99-C-5182, 1999 WL 1044923, *1-2 (N.D. Ill. Nov. 12, 1999) (stating that "stays are frequently granted to avoid duplicative efforts and preserve valuable judicial resources") (attached as Exhibit 12) Where notice of a potential transfer has been filed with the MDL Panel, courts generally review three factors to decide whether to stay pending proceedings in the district court until the MDL Panel can rule. These factors are 1) hardship to the moving party if the stay is not granted; 2) potential prejudice to the nonmoving party; and 3) the judicial resources that can be saved by avoiding duplicative litigation if the cases are consolidated. See, e.g., Rivers, 980 F. Supp. at 1360. "Even where a nonmoving party claims that a stay will cause delay and prejudice, there are considerations of judicial economy and hardship to defendants that are compelling enough to warrant such a delay." Arthur Magna, Inc. v. Del-Val Fin. Corp., Civ. A. No. 90-4378, 1991 WL 13725, at *1 (D. N.J. Feb. 1, 1991) (attached as Exhibit 13). Without question, a stay is warranted here. A stay followed by multidistrict litigation would allow the MDL court to decide core jurisdictional objections possibly subject to repetition and reviewed at the appellate level in due course. Consistency as well as economy are thus served. Ivy, 901 F.2d at 9. Indeed, numerous highly effective and efficient procedures already are in place in MDL-875 to handle this case. In re Asbestos Prods. Liab. Litig., Civ. No. MDL 875, 1996 WL 539589 at *1 (E.D. Pa. Sept. 19, 1996) (attached at Exhibit 14). In contrast, any minor prejudice to plaintiff is far outweighed by the balance of interests favoring multidistrict treatment of asbestos litigation. Indeed, if this case is not stayed and is ultimately transferred to the multidistrict proceeding, "this Court will have needlessly expended

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its energies familiarizing itself with the intricacies of a case that would be heard by another judge." Rivers, 98 F. Supp. at 1360. Additionally, "any efforts on behalf of this Court

concerning case management will most likely have to be replicated by the judge that is assigned to handle the consolidated litigation." Id. at 1360-61. Finally, the Court may issue rulings that conflict with those of the MDL court. See Amer. Seafood, Inc. v. Magnolia Processing, Inc., Civ. A. Nos. 92-1030, 92-1086, 1992 WL 102762, at *2 (E.D. Pa. May 7, 1992) (attached as Exhibit 15). Simply put, this case will be transferred to MDL-875, just as the thousands of predecessor cases that have related to the same common issues of asbestos-related injury have been. In the brief interim prior to transfer, it is a waste of the parties', and imminently worse, the Court's time and resources to continue litigating before this Court, prior to transfer. Accordingly, a stay of all proceedings is warranted under such circumstances. V. NORTHROP GRUMMAN SHOULD BE GRANTED AN EXTENSION OF TIME TO ANSWER OR OTHERWISE PLEAD______ For efficiency and other reasons stated above, and pursuant to Federal Rule of Civil Procedure 6(b), Northrop Grumman moves this Court for an enlargement of time to answer or otherwise plead so that pretrial motions and answers related to the Complaint can be filed according to established procedures of MDL-875. CONCLUSION For the foregoing reasons, Northrop Grumman respectfully requests that this Court stay all proceedings in this matter pending transfer of this action by the J.P.M.L. to MDL-875 in the Eastern District of Pennsylvania, and that it grant Northrop Grumman an extension of time to answer or otherwise plead through and including seven (7) days after this case is transferred to MDL-875.

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ELZUFON AUSTIN REARDON TARLOV & MONDELL, P.A. /s/ Penelope B. O'Connell ____________________________________ Penelope B. O'Connell (DE #4898) 300 Delaware Avenue, Suite 1700 P.O. Box 1630 Wilmington, Delaware 19899 (302) 428-3181 Nancy Shane Rappaport (DE #3428) DLA PIPER US LLP 1650 Market Street, Suite 4900 Philadelphia, PA 19103 (215) 656-3357 Attorneys for Defendant Northrop Grumman Corporation Date: June 12, 2008

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