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Sizemore v. Reilly-Benton Co. Inc.

Court of Appeals of Louisiana, Fourth Circuit

February 6, 2019

JAMES C. SIZEMORE
v.
REILLY-BENTON COMPANY, INC., ET AL

          APPEAL FROM CIVIL DITRICT COURT, ORLEANS PARISH NO. 2016-06452, DIVISION "C" Honorable Sidney H. Cates, Judge.

          Mickey P. Landry Frank J. Swarr Philip C. Hoffman LANDRY & SWARR, LLC, Renee M. Melancon Dean Omar & Branham, LLC, COUNSEL FOR PLAINTIFFS/APPELLEES.

          Kaye N. Courington James M. Matherne COURINGTON, KIEFER & SOMMERS, LLC, COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase.

          ROSEMARY LEDET JUDGE.

         This is 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         In June 2016, James Sizemore, [1] 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.[2]

         Because 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.

         After 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.[3]

         On 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."[4] 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 prejudice.

         In 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.[5] 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.

         On June 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 followed.[6]

         DISCUSSION

         Viking 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:[7] (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.[8] We separately address each issue.

         Violation of ...


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