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In re Asbestos Products Liability Litigation

August 5, 2009


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

No. MDL 875

(E.D. Va. # 3:07-cv-00068)


I. Introduction

Presently before the Court is the "Motion for Leave to File Amended Pleading" filed by Plaintiff Barbara Anne Anderson (alternatively "Plaintiff" or "Anderson") on June 10, 2009 (Doc. 33), the timely responses filed by Defendants Bondex International, Inc., RPM Inc. and RPM International ("Bondex") (Doc. 41) and by Georgia-Pacific Corporation (Doc. 42), both filed on June 24, 2009, the "Notice of Adoption" of Bondex's response filed by Defendant Union Carbide Corporation on June 25, 2009 (Doc. 44) (collectively, "Defendants"), and Plaintiff's reply filed on July 6, 2009 (Doc. 46). Oral argument was heard upon the motion on July 16, 2009. The motion seeks leave to amend the initial complaint (the "Initial Complaint"), which was filed in Virginia state court on October 26, 2006. Defendants assert that the proposed amendment should not be permitted given asserted undue delay in its filing, and would be legally futile in any event. For the reasons set out below, we enter an Order denying the motion.*fn1

II. Factual Background*fn2

Plaintiff generally alleges that she contracted "pleural mesothelioma" as a result of exposure to asbestos. The exposure occurred in two specific phases. In her Initial Complaint, she alleged exposure resulting from her inhalation of "asbestos dust and fibers from [the] asbestos-laden work clothes" brought into the family home by her father who had worked as a "pipe cover insulator" with "asbestos-containing products and/or machinery" during his employment at Portsmouth Naval Shipyard, Portsmouth, Virginia. (Initial Complaint at ¶¶ 1 & 7).*fn3 This first phase of household exposure occurred between 1947 and 1956 when Anderson was a child.

The second phase of exposure, as set out in the proposed amended complaint (the "Amended Complaint"),*fn4 occurred when Anderson worked in an office position at various military and government buildings. She has alleged that that exposure was due to her inhalation of dust from asbestos-containing joint compound used during the construction of drywall partitions and other projects, in the buildings where she worked for the 23 years between 1962 and 1985.

III. Procedural Background

This case was initially filed in the Richmond Circuit Court on October 26, 2006, and was then removed to the United States District Court for the Eastern District of Virginia. It was transferred to this Court on April 23, 2007 as part of multidistrict litigation docket 875. (Doc. 1). Although Plaintiff had filed a "Motion for Remand" on March 2, 2007 along with a "Memorandum in Support of Her Motion for Remand,"*fn5 that motion was "deemed denied without prejudice" by Administrative Order No. 12, and was not renewed. (Doc. 2 at 3 (emphasis omitted)). By amended Order of Referral dated June 17, 2009 and issued by Judge Robreno, this case was referred to us "for final disposition of all pretrial matters not dispositive of a party's claim or defense pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a)." (Doc. 40). Plaintiff filed the "Motion for Leave to File Amended Pleading" presently before us on June 10, 2009 (Doc. 33). With responses and a reply in hand, and having heard oral argument, it is now ready for determination.

IV. Discussion

A. Legal Standards

Amended pleadings are governed by Fed.R.Civ.P. 15. Under Fed.R.Civ.P. 15(a)(1), a party may amend its pleading once as a matter of course prior to being served with a responsive pleading. Where a responsive pleading has been filed, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). A court reviewing a motion for leave is to "freely give leave when justice so requires." Id.

Nonetheless, a court is not required to grant leave to amend in every instance where leave is sought. The decision to grant or deny a proposed amendment is, rather, "within the discretion of the District Court." Foman v. Davis, 371 U.S. 178, 182 (1962).The Supreme Court has specified that in determining whether "justice so requires," a district court should weigh various factors such as "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." before denying a litigant leave to amend. Id.

B. Undue Delay

Defendants have asserted that leave should not be granted because of both undue delay and futility. We are not troubled by the question of undue delay. Delay, by itself, is not sufficient to support a denial of leave to amend. See Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 2001). It, rather, must become "undue," such that it would place "an unwarranted burden on the court, or [would] become 'prejudicial,' placing an unfair burden on the opposing party." Id. (quoting Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir.1984)). Such is clearly not the case here.

Defendants have failed to demonstrate any legally sufficient burden that they would bear if Plaintiff were allowed leave to amend. Bearing in mind the liberal nature of Fed.R.Civ.P. 15, see, e.g., Dole v. Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir. 1990), we are unable to see how allowing Plaintiff to amend would either place "an unwarranted burden on the court" or "an unfair burden" upon Defendants. Cureton, 252 F.3d at 273. The delay here does not support a denial of Plaintiff's motion.

C. Futility

Defendants more convincingly assert that to grant the motion would be futile based upon their belief that the claims raised in the Amended Complaint would be barred by the Virginia statutes of limitations. We accept that the district court need not provide a litigant leave to amend where it would be futile to do so. See, e.g., Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001). In determining whether a proposed amendment is or may be "futile," the Third Circuit has specified that "[f]utility means that the complaint, as amended, would fail to state a claim upon which relief could be granted." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citation omitted). In other words, when "assessing futility, the District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." Id. Importantly for ...

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