MCCLUNG v. 3M COMPANY et al

Filing 103

OPINION AND ORDER that Defendant General Electric's request to sever and transfer venue to the Southern District of West Virginia is GRANTED, and that the pending motion to dismiss is DENIED as moot. The Clerk shall transfer the action against General Electric to the United States District Court for the Southern District of West Virginia. Signed by Magistrate Judge Steven C. Mannion on 4/17/17. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION

JOSEPH R. MCCLUNG, JR.
Plaintiff,

Civil Action No.
2:16-CV-2301-ES-SCM

v.
3M COMPANY, et al.,
Defendants.

OPINION AND ORDER ON
TRANSFER
[D.E. 35]

Steven C. Mannion, United States Magistrate Judge.
Before this Court is Defendant General Electric Company’s (“General Electric”) request
for severance and transfer to the United States District Court for the Southern District of West
Virginia.1 General Electric originally moved to dismiss this action for lack of personal
jurisdiction or transfer, in the alternative.2 The Honorable Esther Salas, U.S.D.J. referred the
motion to the undersigned for disposition.3 Upon consideration of the parties’ submissions and
oral arguments, and for the reasons stated below, the Court concludes it is in the interest of
justice to sever all claims against General Electric and transfer them to the Southern District of
West Virginia.4

1

(ECF Docket Entry No. (“D.E.”) 90, Def.’s Suppl. Br.).

2

(D.E. 35).

3

L. Civ. R. 72.1(a)(1).

4

28 U.S.C. § 1404(a).

I.

BACKGROUND5
This removed action arises out of Plaintiff decedent, Joseph McClung, Jr.’s (“Mr.

McClung”), alleged exposure to asbestos and asbestos-containing products that were developed
and manufactured by multiple defendants, including General Electric.6 Mr. McClung’s asbestos
exposure allegedly resulted from working on and around F-4 aircraft during his United States Air
Force (“Air Force”) service in Spangdalem, Germany.7 He testified that while servicing F-4
aircraft engines, he was exposed to dusty insulation blankets (“asbestos blankets”) from which he
contracted fatal pleural mesothelioma.8 General Electric manufactured the engines, known as J79
engines, which were incorporated and installed into F-4 aircraft.9
As a lifelong resident of West Virginia, Mr. McClung had never traveled to or set foot in
New Jersey.10 His wife and estate administrator, Joyce McClung (“Mrs. McClung”) (collectively
the “McClungs”) resides in West Virginia,11 and brings claims based on her late husband’s

5

The allegations set forth within the pleadings and motion record are relied upon for purposes of
this motion only. The Court has made no findings as to the veracity of the parties’ allegations.
6

(See generally D.E. 81, Am. Compl.).

7

(D.E. 45-6, McClung Dep. Tr., Ex. D at 22:14-22).

8

(Id. at 23:20-24:6; D.E. 81, Am. Compl. ¶¶ 1-2, 4).

9

(D.E. 54-1, Declaration of Michael H. Solon (“Solon Decl.”) ¶ 11).

10

(D.E. 35, Def.’s Br. at ¶ 1; D.E. 35-3, McClung Dep. Tr., Ex. A at 103:3-10).

11

(D.E. 81, Am. Compl. ¶ 1 at 3).
2

wrongful death and seeks compensation under West Virginia state statutes.12 General Electric is
a New York corporation with its principal place of business in Boston, Massachusetts.13
General Electric and Defendant, The Boeing Company (“Boeing”), originally moved to
dismiss this action and alternatively sought transfer to different district courts.14 Upon review of
the submissions and conflicting positions on transfer, the Court recognized that a single venue
did not exist in which all of Mr. McClung’s claims could be litigated against the eight
Defendants at once.15 The Court sua sponte ordered supplemental submissions on whether the
claims in this action could be severed and transferred to another forum, and whether such action
would be in the interests of justice.16 In issuing the Order, the Court found that the events giving
rise to the claim – Mr. McClung’s alleged exposure to asbestos – occurred primarily in
Germany.17 The Court also noted that although a plaintiff’s choice of forum is generally “a
paramount consideration in any determination of a transfer request,” Mr. McClung’s preference
would be afforded less deference in this matter because New Jersey is not his home forum.18

12

(Id. ¶¶ 1-4, 1-6 at 18-20). The Amended Complaint also sets forth causes of action under New
Jersey state law.
13

(D.E. 90-2, Defs.’ 8-K Forms, Ex. B at 32).

14

(D.E. 35; 53).

15

The Amended Complaint has since added a ninth defendant.

16

(D.E. 68 ¶ 2).

17

(D.E. 71, Ct. Hr’g Tr. at 20).

18

(Id. at 20:13-17). See Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473, 480 (D.N.J. 1993)
(internal citations omitted).
3

With the exception of Boeing, the remaining Defendants neither joined nor opposed the
conflicting positions on transfer.19
At present, the Court considers the original briefs and supplemental submissions filed by
General Electric and the McClungs. General Electric maintains that this Court lacks personal
jurisdiction but also seeks severance and transfer to the Southern District of West Virginia.20 To
support its position, General Electric “explicitly consents” to personal jurisdiction in West
Virginia.21 The McClungs oppose and argue that despite consent to personal jurisdiction, General
Electric cannot demonstrate that this action “might have been brought” in West Virginia and
transfer is therefore inappropriate.22 The McClungs contend that severance would result in
prejudice23 yet the Amended Complaint sets forth causes of action under West Virginia state
law.24
II.

DISCUSSION & ANALYSIS
Consistent with the discretion provided by 28 U.S.C. § 1404(a), the Court concludes it is

in the interest of justice to sever and transfer the claims against General Electric to the Southern

(D.E. 71, Ct. Hr’g Tr. at 11:11-15). See White v. ABCO Eng'g Corp., 199 F.3d 140, 144 (3d
Cir. 1999) (recognizing that “[a]lthough § 1404(a) contemplates transfer without the consent of
all the parties, for transfer to be effective all relevant parties must be apprised that the court is
considering a transfer and have the opportunity to voice opposition”) (internal citations omitted).
19

20

(D.E. 90, Def.’s Suppl. Br.).

21

(Id. at 4 n.6).

22

(D.E. 96, Pl.’s Suppl. Opp. at 5).

23

(Id. at 7-9).

24

(D.E. 81, Am. Compl. ¶¶ 1-4, 1-6 at 18-20).
4

District of West Virginia while retaining the claims against the non-moving Defendants.25 The
following analysis will first address severance and next, weigh factors to determine whether
General Electric has demonstrated the appropriateness of transfer. 26
A. § 636, Magistrate Judge Authority
A motion to transfer a case to another district is considered a non-dispositive motion,
which may be decided by a magistrate judge under 28 U.S.C. § 636(b)(1)(A). 27 The decision to
grant or deny an application for transfer is discretionary.28 If such a decision is appealed, the
district court must affirm the decision unless it is “clearly erroneous or contrary to law.”29
B. Severing the Claims
On balance, the Court finds that given the number of Defendants and the alternative
choice of dismissal, the interests of justice is best be served by severance and transfer.30 “[T]he
court may at any time, on just terms, add or drop a party” and “sever any claim against a

25

§ 1404(a). D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 110 (3d Cir. 2009) (quoting White
v. ABCO Eng'g Corp., 199 F.3d 140, 144 (3d Cir. 1999)); see Amica Mut. Ins. Co. v. Fogel, 656
F.3d 167, 171 (3d Cir. 2011).
See Park Inn Int’l, LLC, v. Mody Enterprises, Inc., 105 F. Supp. 2d 370, 377 (D.N.J. 2000)
(noting that "the burden of establishing the need for transfer . . . . rests with the movant")
(internal citations omitted).
26

27

See generally Job Haines Home for the Aged v. Young, 936 F. Supp. 223 (D.N.J. 1996).

28

See Cadapult Graphic Sys. v. Tektronix, Inc., 98 F. Supp. 2d 560, 564 (D.N.J. 2000) (internal
citations omitted).
29

Marks v. Struble, 347 F. Supp. 2d 136, 149 (D.N.J. 2004) (internal citations omitted).

30

See Bockman v. First Am. Mktg. Corp., 459 F. App'x 157, 162 n.11 (3d Cir. 2012) (noting that
“[t]ransfer in lieu of dismissal is generally appropriate to avoid penalizing plaintiffs by ‘timeconsuming and justice-defeating technicalities’") (internal citations omitted).
5

party.”31 “Nothing within § 1404 prohibits a court from severing claims against some defendants
from those against others and transferring the severed claims."32 Although the Court is “not
required to consider anything in particular in reaching its conclusion;”33 “[b]efore effecting such
a severance, a judge should weigh the convenience to the parties requesting transfer against the
potential inefficiency of litigating the same facts in two separate forums.”34 The Third Circuit
has cautioned against granting severance "if the defendant over whom jurisdiction is retained is
so involved in the controversy to be transferred that partial transfer would require the same
issues to be litigated in two places."35 “The decision to sever a claim . . . is left to the discretion
of the trial court.”36
Here, the Court finds that severing and transferring General Electric to the Southern
District of West Virginia would materially advance the administration of justice for several
reasons.37 As previously noted, a single proper venue does not exist in which all of the
McClungs’ claims can be litigated at once or where all nine Defendants are amenable to personal
jurisdiction. Additionally, severance will not prejudice the non-moving Defendants who, by
comparison, are tangentially connected to the central allegations in this case. While the Amended
31
32

Fed. R. Civ. P. 21. See White, 199 F.3d at 146 n.6.
Id. at 144 (internal citations omitted).

33

Rodin Properties-Shore Mall v. Cushman & Wakefield, 49 F. Supp. 2d 709, 721 (D.N.J.
1999).
34

White, 199 F.3d at 144; see also 15C Wright & Miller, Federal Practice and Procedure § 3854
(4th ed. 2016).
35

Cottman Transmission Sys. v. Martino, 36 F.3d 291, 296 (3d Cir. 1994).

36

Rodin, 49 F. Supp. 2d at 721.

37

§ 1404(a).
6

Complaint alleges “Defendants acted in concert with each other and other members of the
asbestos industry,”38 the Court agrees with General Electric’s position: “that [Mr. McClung’s]
claims are different against the different defendants, who each manufactured, sold, purchased,
and marketed their own unique product.”39 An overlap in evidence is likely; however, even Mr.
McClung singles out the “asbestos blankets” which allegedly covered the J79 engines as the
primary source of his injury. There is also no prejudice to General Electric who has not claimed
that any other defendant’s presence is necessary to defend this case.
The Court also finds that severing and transferring will result in the least amount of
prejudice to the McClungs given that the Court’s exercise of personal jurisdiction over General
Electric is unclear. While Mr. McClung argues that the pending transfer request is an “attempt . .
. to usurp the plaintiff’s role of forum choice,” his preference to litigate in this District is
afforded less deference because New Jersey is not his home.40 The Court is cognizant that
effecting severance in this matter will result in some inefficiency by requiring litigation in
multiple districts; however, dismissal would necessitate refiling a separate case in a separate
district to start the case anew, resulting in even further delay. Lastly and importantly, granting
severance is consistent with the Court’s sound exercise of discretion. If the non-moving
Defendants deem it essential to litigate this action with General Electric they may submit to the

38

Notably, Mr. McClung himself has articulated that a third party, Johns Manville, was
undisputedly the “sole source of the asbestos blankets used in the J79 engine.” (D.E. 45, Pl.’s
Opp. at 11).
39

(D.E. 90, Def.’s Suppl. Br. at 7).

(D.E. 96, Pl.’s Suppl. Opp. at 5). See Ricoh Co., Ltd. v. Honeywell, Inc., 817 F. Supp. 473, 480
(D.N.J. 1993); cf. Yocham v. Novartis Pharms. Corp., 565 F. Supp. 2d 554, 558 (D.N.J. 2008).
40

7

jurisdiction of the Southern District of West Virginia.41 As a result of severance, the claims
against General Electric will continue as a separate, independent action from this litigation.42
C. § 1404, Transfer of Venue
Next, the Court finds that transfer is appropriate under section 1404(a) which provides:
“[f]or the convenience of parties and witnesses, in the interest of justice” the Court may transfer
this “civil action to any other district or division where it might have been brought.”43 In addition
to private and public interest factors, courts “consider all relevant factors to determine whether
on balance the litigation would more conveniently proceed and the interests of justice be better
served by transfer to a different forum.”44 “The decision whether to transfer falls in the discretion
of the trial court.”45
As a preliminary matter, this action “might have been brought” in the Southern District of
West Virginia.46 Under section 1391(b)(2), a civil action may be brought in “a judicial district in
which a substantial part of the events or omissions giving rise to the claim occurred.”47 The
McClungs argue that this action could not have been brought in West Virginia because “no

See D’Jamoos v. Pilatus Aircraft Ltd., 91576 Civil Action No. 07-1153, 2009 U.S. Dist.
LEXIS 91576, at *10-11 (E.D. Pa. Oct. 1, 2009).
41

42

See White, 199 F.3d at 145 n.6 (discussing where claims are severed under Rule 21 they
continue as independent actions against the severed defendants) (internal citations omitted).
43

§ 1404(a).

44

Jumara, 55 F.3d at 879 (internal citations omitted).

45

Cadapult, 98 F. Supp. 2d at 564 (internal citations omitted).

46

28 U.S.C. § 1391(b)(2).

47

§ 1391(b)(2).
8

significant acts regarding the procurement, sale or testing of asbestos occurred” there.48
However, Mr. McClung, a lifelong resident of the state, developed symptoms of pleural
mesothelioma, received medical treatment, and even passed away there.49 The Court finds that
these acts constitute “a substantial part of the events . . . giving rise to the claim” such that this
action might have been brought in West Virginia. Personal jurisdiction is not an issue since
General Electric "explicitly consents” to jurisdiction in West Virginia.50
i. Private Interest Factors Support Transfer
The balance of private interest factors favor transfer. Courts consider the following
private interest factors: “(1) the plaintiff’s forum preference; (2) the defendant’s preference, (3)
whether the claim arose elsewhere, (4) the convenience of the parties as indicated by their
relative physical and financial condition, (5) the convenience of the witnesses—but only to the
extent that the witnesses may actually be unavailable for trial in one of the fora, and (6) the
location of books and records.”51

48

(D.E. 96, Pl.’s Suppl. Opp. at 5).

(D.E. 35-4, Pl.’s Interrog. Answers, Ex. B at ¶ I.9-12). See White v. Lykes Bros. S.S. Co., 333
F. Supp. 836, 837 (E.D. Pa. 1971) (finding that the interest of justice warranted transfer of the
case to Alabama because plaintiff resides there, was treated there, and was admitted to a hospital
there. The Court also found it pertinent that plaintiff had not come to Philadelphia in the last five
years and that aside from counsel residing there, no relationship with the forum existed); see also
Woodell v. Ethicon, Inc., Civil Action No. 15-7669 (MAS) (LHG), 2016 U.S. Dist. LEXIS
112667, at *9 (D.N.J. Aug. 24, 2016) (transferring to the Middle District of North Carolina
where plaintiff received medical treatment for issues caused by a medical device which allegedly
caused the death of the plaintiff, a North Carolina resident. The court transferred pursuant to 28
U.S.C. § 1406 but noted that a Section 1404(a) analysis would produce the same result).
49

50

(D.E. 90, Def.’s Suppl. Br. at 4 n.6).

51

Park Inn, 105 F. Supp. 2d at 377 (quoting Jumara, 55 F.3d at 879-80).
9

Here, several private factors warrant transferring the claims against General Electric.
“[W]hether the claim arose elsewhere”52 weighs strongly towards transfer because the events
giving rise to this action occurred entirely outside of New Jersey. The McClungs continue to
argue that “significant events” transpired in this District but the Court cannot agree.53 Mr.
McClung’s alleged asbestos exposure occurred in Germany, and he developed symptoms,
received his diagnosis, and was administered medical treatment in West Virginia.54 In light of
these contacts, the evidence related to Mr. McClung’s medical condition and treatment is located
in West Virginia creating the most significant relationship to this independent action. 55 Mr.
McClung appears to agree to the extent that West Virginia state claims are set forth in the
Amended Complaint.56 Furthermore, because General Electric submits to the Southern District
of West Virginia’s personal jurisdiction trying the case there will allow the McClungs to litigate
in their home state which will alleviate any associated travel costs.
ii. Public Interest Factors Support Transfer
The balance of public interest factors also favor transfer. Public interests include: “(1)
the enforceability of the judgment, (2) practical considerations that could make the trial easy,
expeditious, or inexpensive, (3) the relative administrative difficulty in the two fora resulting
from court congestion, (4) the local interest in deciding local controversies at home, (5) the
public policies of the fora, and (6) the familiarity of the trial judge with the applicable state law

52

Jumara, 55 F.3d at 879-80 (internal citations omitted).

53

(D.E. 96, Pl.’s Suppl. Opp. at 5).

54

(D.E. 35-4, Pl.’s Interrog. Answers, Ex. B at ¶ I.9-12).

55

(Id. ¶¶ I.7, I.26).

56

(See generally D.E. 81, Am. Compl.).
10

in diversity cases.”57
In this case, several practical considerations making the trial “easy, expeditious, or
inexpensive” weigh towards transfer. First, transfer to the Southern District of West Virginia
(where the median time from filing to trial in civil cases is 21.8 months as compared to 46.9
months in the District of New Jersey) will promote the expeditious resolution of this case.58
Second, transfer will eliminate jurisdictional uncertainties since General Electric consents to
personal jurisdiction in West Virginia which will nullify any further expense or time spent with
regard to jurisdictional discovery.59 Third, Mr. McClung’s primary counsel is located in West
Virginia making the transition to litigating there both easy and efficient.60 To avoid duplication
and confusion, the courts involved can also coordinate discovery efforts. Concluding discovery
will allow the Southern District of West Virginia to focus its efforts on settlement and/or an
alternative disposition of the case on its merits. Finally, “the public policies of the fora”61 weigh
towards transfer because “New Jersey jurors should not be burdened with adjudicating a matter
concerning decisions and/or conduct which occurred almost exclusively outside the State of New
Jersey.”62 On balance, both private and public factors support transfer to the Southern District of
West Virginia.

57

Park Inn, 105 F. Supp. 2d at 377 (quoting Jumara, 55 F.3d at 879-80).

(D.E. 35-1, Def.’s Br. at 16) (citing Administrative Office of the U.S. Courts, Judicial
Business of the United States Courts).
58

59

See Convergence Techs. (USA), LLC v. Microloops Corp., 711 F. Supp. 2d 626, 643 (E.D. Va.
2010) (noting it is within the court's discretion to transfer a matter if transfer will “obviate a
substantial question of personal jurisdiction”).
60

(D.E. 97-1, Def.’s Suppl. Reply, Ex. A McClung De Bene Esse Dep. Tr. at 17:8-18).

61

Jumara, 55 F.3d at 879-80.
11

IV.

CONCLUSION
For the foregoing reasons, this severed action against General Electric will be transferred

to the Southern District of West Virginia under 28 U.S.C. § 1404. The balance of factors favor
transfer and transfer is appropriate. The pending motion to dismiss for lack of personal
jurisdiction will be denied as moot.
An appropriate Order follows:
ORDER
IT IS on this Monday, April 17, 2017,
1. ORDERED that Defendant General Electric’s request to sever and transfer venue to the
Southern District of West Virginia is GRANTED; 63 and it is further
2. ORDERED that the pending motion to dismiss64 is DENIED as moot; and it is further
3. ORDERED that the Clerk of the Court shall transfer the action against General Electric
to the United States District Court for the Southern District of West Virginia.

4/17/2017 9:54:21 AM

Original: Clerk of the Court
Hon. Esther Salas, U.S.D.J.
cc:
All parties
File
62

Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 526 (D.N.J. 1998).

63

(D.E. 90, Def.’s Suppl. Br.).

64

(D.E. 35).
12