March 20, 2017
We are pleased to report that Justice Moulton denied Weitz & Luxenberg’s motion to restore in the McKim matter to the New York City Asbestos Litigation (“NYCAL”) docket. Mr. McKim served as an electrician’s mate in the U.S. Navy for five years—he was stationed at bases and shipyards in New York, Illinois, and Virginia for short periods of time throughout his naval career. Subsequently, he spent the remainder of his career working in Tennessee and Mississippi, alleging substantial exposure to asbestos. The case was initially brought in New York in 2012, after Mr. McKim’s death. After depositions were held, in 2014, our firm made a motion to dismiss, based on forum non conveniens, arguing that the wholly tenuous connection to New York was insufficient to tether the case to New York state. Instead, we argued that either Tennessee or Mississippi would be a proper forum, as the Decedent alleged nearly thirty years of exposure to asbestos in those two states.
The prior NYCAL judge, Justice Heitler, agreed with our position, and dismissed the case. Her order of dismissal was conditional—it required all defendants to “stipulate in writing to waive any jurisdictional and statute of limitations defenses in any action ‘commenced by plaintiffs in a different more suitable forum.’” Plaintiffs had 120 days (later extended to 150 days) from the service of the order to file such an action. Pending the filing of such an action, the New York case was stayed.
Plaintiffs re-filed this action in Illinois; however, it was plagued with the same forum issues as the New York action. Accordingly, several defendants moved to dismiss the Illinois action pursuant to forum non conveniens. Instead of adjudicating this matter, Plaintiffs voluntarily dismissed the Illinois action and refiled the case in Mississippi—499 days after Justice Heitler’s order, completely failing to comply with the 150-day condition Justice Heitler had placed upon her dismissal of the case in New York. As such, defendants moved to dismiss the Mississippi action as being time-barred per the statute of limitations. The Mississippi court agreed, holding that Plaintiffs violated the terms of Justice Heitler’s order, by not filing in a proper forum within 150 days, and dismissed the action.
In September of 2016, Plaintiffs moved to restore this action in New York, arguing that Mississippi misinterpreted Justice Heitler’s order and New York law. Our firm took the lead in drafting the papers and arguing same on behalf of defendants. We argued that Plaintiffs’ counsel woefully failed to comply with Justice Heitler’s original order, by first filing in Illinois, an inappropriate forum, and subsequently filing in Mississippi, completely blowing the statute of limitations. Refiling in New York now, we argued, would be Plaintiffs’ fourth bite at the apple.
Justice Moulton agreed with our analysis, citing large portions of our papers in his decision, denying Plaintiffs’ motion to restore. As Plaintiffs had 150 days to file in an appropriate forum, and failed to do so, Justice Moulton found no reason to deviate from the Mississippi court’s ruling.