JAMES C. SIZEMORE
REILLY-BENTON COMPANY, INC., ET AL
FROM CIVIL DITRICT COURT, ORLEANS PARISH NO. 2016-06452,
DIVISION "C" Honorable Sidney H. Cates, Judge.
P. Landry Frank J. Swarr Philip C. Hoffman LANDRY &
SWARR, LLC, Renee M. Melancon Dean Omar & Branham, LLC,
COUNSEL FOR PLAINTIFFS/APPELLEES.
N. Courington James M. Matherne COURINGTON, KIEFER &
SOMMERS, LLC, COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Tiffany G. Chase.
ROSEMARY LEDET JUDGE.
a mesothelioma case. The narrow issue presented is whether
the trial court abused its discretion in granting the
plaintiff's motion to dismiss one of multiple defendants
without prejudice, mooting the dismissed defendant's
pending motion for summary judgment. Finding no abuse of
discretion, we affirm.
AND PROCEDURAL BACKGROUND
2016, James Sizemore,  a South Carolina resident, commenced this
suit for damages against multiple defendants. Mr. Sizemore
averred that he was diagnosed with mesothelioma due to his
work-related exposure to asbestos from 1962 to 2009. During
that period, he worked as a welder, pipefitter, and
boilermaker at numerous industrial facilities, including
shipyards, paper mills, and power plants. The facilities at
which he worked were located in numerous states, including
Louisiana and South Carolina. In July 2016, Mr. Sizemore
filed a supplemental and amended petition adding Viking Pump,
Inc. as a defendant.
Mr. Sizemore's asbestos exposures from certain defendants
occurred exclusively in other states, certain defendants
moved for dismissal for lack of personal jurisdiction and
certain defendants moved for dismissal based on forum non
conveniens. In response, the plaintiff dismissed those
defendants and filed a second suit in South Carolina state
court in 2016 (the "South Carolina Case"). Viking
was not one of the defendants who moved for dismissal based
on lack of jurisdiction and forum non conveniens.
answering the petition, Viking filed three motions for
summary judgment. It filed its first motion in July 2017; it
filed renewed motions in September 2017 and in April 2018.
Viking's trio of motions was based on lack of product
identification. Citing Lucas v. Hopeman Bros., Inc.,
10-1037 (La.App. 4 Cir. 2/16/11), 60 So.3d 690, Viking
contended that it was entitled to summary judgment because
jobsite-only circumstantial evidence is insufficient to
preclude summary judgment.
April 17, 2018, the plaintiff's counsel emailed
Viking's counsel a proposed joint motion to dismiss
without prejudice. According to Viking, it was given no
notice that a week earlier, on April 9, 2018, the plaintiff
amended his petition in the South Carolina Case to add Viking
as a defendant. On April 23, 2018, Viking filed an
"Objection to Dismissal without
Prejudice." In support, Viking characterized any
forthcoming motion to dismiss without prejudice as "a
veiled, eleventh hour attempt to transfer [the
plaintiff's] claims against Viking Pump to South Carolina
and [thus] avoid a hearing on Viking Pump's pending
Motion for Summary Judgment." Viking requested that its
motion for summary judgment be granted and that the
plaintiff's claims against it be dismissed with
response, the plaintiff filed a "Reply to Viking Pump,
Inc.'s Objection to Dismissal without Prejudice."
With its reply memorandum, the plaintiff filed a rule to show
cause. The trial court set the plaintiff's
rule to show cause for a hearing on July 6, 2018-the same
date that Viking's motion for summary judgment was set
for hearing. In its reply memorandum, the plaintiff contended
that a voluntary dismissal without prejudice of all his
claims against Viking was proper and necessary.
28, 2018, Viking filed an "Opposition to Plaintiff's
Motion to Dismiss without Prejudice." At the July 6,
2018 hearing, the trial court granted the plaintiff's
motion to dismiss without prejudice and denied Viking's
motion for summary judgment as moot. This appeal
contends, as it did in the trial court, that the
plaintiff's motion to dismiss without prejudice should
not have been granted for the following two
reasons: (i) the motion was untimely filed, given
the trial court's scheduling order; and (ii) the purpose
of the motion was to transfer the plaintiff's claims
against Viking to the South Carolina Case and to avoid a
hearing on Viking's pending summary judgment motion. An
abuse of discretion standard applies in reviewing the trial
court's ruling on both issues. We separately address each