Malone et al v. Air & Liquid Systems Corporation et al

Filing 392

REPORT AND RECOMMENDATIONS- recommending that the court grant #349 MOTION for Summary Judgment, #363 MOTION for Summary Judgment, #341 MOTION for Summary Judgment, #374 MOTION for Summary Judgment, #345 MOTION for Summary Judgment, #358 MOTION for Summary Judgment, #347 MOTION for Summary Judgment, #360 MOTION for Summary Judgment, #343 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 5/11/2015. Signed by Judge Sherry R. Fallon on 4/24/2015. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

CHARLES D. MALONE and
ELIZABETH MALONE,
Plaintiffs,

v.
AIR & LIQUID SYSTEMS
CORPORATION, et al.
Defendants.

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Civil Action No. 14-406-SLR-SRF

REPORT AND RECOMMENDATION

I.

INTRODUCTION

Pending before the court in this asbestos related personal injury action are certain
individual defendants' motions for summary judgment. The defendants, as indicated in the chart
below, each move for summary judgment on the basis of a lack of product identification by the
Plaintiffs.

Air &Liquid Systems
Co oration
Armstrong International
Inc.
Atwood & Morrill
Com an Inc.
Blackmer Pump Company
Crown Cork & Seal
Com an Inc.
Flowserve US Inc.
The Nash Engineering
Com an
Trane US Inc.

Motion & Brief in Support of Motion for
Summa Jud ment
Motion & Brief in Support of Motion for
Summa Jud ment
Motion for Summary Judgment and
Memorandum in Su ortThereof
Motion & Brief in Support of Motion for
Summa Jud ment
Motion & Memorandum in Support of
Motion for Summar Jud ent
Motion & Memorandum in Support of
Motion for Summa Jud ent
Motion for Summary Judgment and
Memorandum in Su ortThereof
Motion & Brief in Support of Motion for
Summa Jud ment

1

374 & 375
358 & 362
345
343 & 344
360 & 361
349 & 350
347
363 & 364

The William Powell
Com an

Motion & Brief in Support of Motion for
Summa Jud ment

341 & 342

On April 17, 2015, Charles D. Malone and Elizabeth Malone ("Plaintiffs") filed a Notice
(the "Notice") of non-opposition to the foregoing defendants' motions for summary judgment.
(D.I. 389) I recommend that the court grant summary judgment and dismiss with prejudice each
of the defendants individually, based upon no opposition to the motions, pursuant to Fed. R. Civ.
P. 56(e)(3).

II.

BACKGROUND
Plaintiffs filed this personal injury action against defendants on April 1, 2014. (D.I. 1) The

Complaint alleges Charles D. Malone ("Mr. Malone") experienced exposure to asbestoscontaining products and/or equipment from approximately 1964 to 1982, while working at Ingalls
Shipyard in Pascagoula, MS. Id. at

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45(a). In 1964, for approximately four months, Ingalls

Shipyard employed Mr. Malone as a ship fitter. Id. Furthermore, from approximately 1964 until
1982, Mr. Malone continued working at the Ingalls Shipyard work site for various independent
contractors. Id.

at~

45 (a)-(b). Plaintiffs allege that Mr. Malone was exposed to asbestos at Ingalls

Shipyard, which led to his diagnosis of mesothelioma. Id.
Fact discovery relating to product identification closed on March 13, 2015, followed by
deadlines for filing dispositive motions and opening briefs on March 31, 2015. 1 (D.I. 186)

III.

DISCUSSION
Summary judgment is appropriate when "the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.

1

The original deadline of March 31, 2015 in the scheduling order (D.I. 186), was extended for
certain defendants' pursuant to stipulations of the parties.
2

56(a). Material facts are those that could affect the outcome of the proceeding, and "a dispute about
a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a
verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)). The moving party bears the initial burden of proving the absence of a genuinely
disputed material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458, 46061 (3d Cir. 1989).
When determining whether a genuine issue of material fact exists, the court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180,
184 (3d Cir. 2007). However, the existence of some evidence in support of the nonmoving party
may not be sufficient to deny a motion for summary judgment. Rather, there must be enough
evidence to enable a jury reasonably to find for the nonmoving party on the issue. See Anderson,
477 U.S. at 249.
In this case, defendants have each filed separate motions seeking summary judgment in
their favor. (D.1. 374; 358; 345; 343; 360; 349; 347; 363; 341) Having been given an adequate
opportunity to engage in fact discovery to create a record on product identification, Plaintiffs have
noticed their intent not to oppose the motions of certain defendants as indicated in the preceding
chart. Therefore, Fed. R. Civ. P. 56(e)(3) permits the court to recommend dismissal of each moving
defendant, with prejudice.

IV.

CONCLUSION

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I recommend that the court grant summary judgment in favor of the following defendants
and dismiss each defendant with prejudice, as fact discovery is closed and there is no opposition
by the Plaintiffs.

Air &Liquid Systems
Co oration
Armstrong International
Inc.
Atwood & Morrill
Com an Inc.
Blackmer Pump Company
Crown Cork & Seal
Com an Inc.
Flowserve US Inc.
The Nash Engineering
Com an
Trane US Inc.
The William Powell
Com an

Motion & Brief in Support of Motion for
Summa Jud ment
Motion & Brief in Support of Motion for
Summa Jud ent
Motion for Summary Judgment and
Memorandum in Su ortThereof
Motion & Brief in Support of Motion for
Summa Jud ment
Motion & Memorandum in Support of
Motion for Summar Jud ment
Motion & Memorandum in Support of
Motion for Summa Jud ment
Motion for Summary Judgment and
Memorandum in Su ortThereof
Motion & Brief in Support of Motion for
Summa Jud ment
Motion & Brief in Support of Motion for
Summa Jud ment

374 & 375
358 & 362
345
343 & 344
360 & 361
349 & 350
347
363 & 364
341 & 342

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(1 ), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed.
R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10) pages

each. The failure of a party to object to legal conclusions may result in the loss of the right to de
novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.l (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.

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Dated: April :t~

, 2015

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